(dissenting).
I dissent. The majority opinion ignores the pleading and jury finding that Jimmy Eaton was injured by reason of being furnished a defective chattel, as distinguished from a defect on premises controlled by a landowner. The opinion then proceeds to hold that appellant Papco had a “matured right” to have the case reopened so that it could submit a rebuttal witness simply by reason of the fact that the trial court had permitted appellee Eaton to reopen the case and produce a rebuttal witness. ■ The subject of the sur-rebuttal testimony of Turchi had to do with whether or not the superintendent of Eaton’s employer was warned of the danger arising from the use of a scaffold furnished by Papco. I believe that the jury findings were sufficient to sustain the judgment of the trial court without respect to any finding on an issue of warning, and further, that no showing was made that the trial court abused its discretion in refusing to reopen the case for Turchi’s testimony.
In the petition on which the case was tried, Jimmy Eaton alleged that the scaffold from which he fell when injured was erected by Papco, Inc., to quote: “. for the express purpose of providing a place for the plaintiff to perform his labor.” Additionally, that “. . . the defendant, in the customary course of its business, furnished a scaffold to the plaintiff for the purpose of providing the plaintiff with a place to perform his labor.” There were further allegations that the scaffold was in a defective condition, “. . . in that the toe board was not properly and securely fastened to the scaffold, . . .” and that this created an unreasonable risk of harm to users of the scaffold, such as Jimmy Eaton.
There were alternative allegations that Papco undertook to furnish Eaton a scaf*546fold for his use in performing his labor, thereby impliedly warranting that the same was reasonably fit for its intended use; that it was so defective as to be unreasonably dangerous “ . . .by reason of the toe board not being properly and securely fastened to the scaffold, . . and that this was a producing cause of the injuries of Jimmy Eaton.
In response to this pleading and the abundance of testimony, the jury made the following summarized findings: Papco employees created a dangerous condition by securing the toe board in question to the scaffold by using only two nails toed into the platform plank (Issue I) ; that the employees of Papco knew that or should have known of the existence of the dangerous condition just inquired about (Issue la); that Papco failed to exercise ordinary care to warn Jimmy Eaton of the existence of the dangerous condition inquired about (Issue lb), which was a proximate cause of the injuries sustained by Eaton; and, finally, that the toe board would have been adequately secured to use as a handhold in climbing down the scaffold had Papco employees secured it with two nails in each end in addition to two nails toed into the platform plank (Issue III).
The testimony convincingly showed that Jimmy Eaton’s employer, SEPCO, and its employees had nothing to do with the erection of the scaffold, which was built and furnished by Papco as being ready for use. All of the witnesses who testified as to the manner of securing the toe board that gave away with Jimmy Eaton, with the exception of SEPCO’S Superintendent, Warren Atilds, stated there were only two diagonally driven toe nails holding the board, and there were no nails driven horizontally at the end to secure the ends to the leading perpendicular boards. On cross-examination SEPCO’S Superintendent Aulds testified:
“Q. The truth of the matter is that it (the toe board) didn’t have but two nails, driven in at an angle, if it didn’t meet your standard ?
A. It wouldn’t meet my standard, no, sir.”
The majority opinion ignores the pleading, evidence and jury findings just summarized, and concludes that whether Papco was an occupier of land or the supplier of a chattel, its liability for injury to Eaton is that of an occupier of land to a business invitee. I do not believe this holding properly disposes of the case, or can serve as a basis for reversal.
The majority opinion concedes that under Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967), the occupier of land is relieved of all harm resulting from dangerous conditions on the premises that are not open and obvious by warning of their existence. I do not believe the facts and jury findings of the present case bring it within the principles announced in Delhi-Taylor. In the first place, we are not dealing with a relationship between the occupier of land and an invitee, but rather with that existing between the manufacturer or supplier of a scaffold (chattel) and one using the scaffold for the purpose for which it was supplied. The duty of the supplier in this instance is to furnish a scaffold reasonably safe for its intended use, free from defects known to it or discoverable by the use of ordinary care. There is an additional duty to correct such defects upon discovery or warn the intended user of them.
In Roosth & Genecov Production Co. Inc. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953) our Supreme Court considered whether there was a duty of inspection to forestall personal injury on the part of one who supplies chattels to another. In overruling the earlier case of Southern Oil Co. v. Church, 32 Tex.Civ.App. 325, 74 S.W.2d 797 (1903), 32 Tex.Civ.App. 325, 75 S.W.2d 817 (1903) the Supreme Court held the duty to exist, and relied on the Restatement of Torts, Sections 392-393. In the *547present text of the Restatement, the comment under Section 392 states that liability thereunder is determined by Sections 388—390. Section 389 is as follows:
“CHATTEL UNLIKELY TO BE MADE SAFE FOR USE.
One who supplies directly or through a third person a chattel for another’s use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.”
The central question in Roosth & Genecov Production Co., Inc. v. White, supra, was whether there was a duty of inspection of a chattel. In holding that there was, the decision of necessity held there was a kindred duty of manufacturing or constructing the chattel so that it would not be unreasonably dangerous for its intended use. Papco’s role in constructing the scaffold more closely resembles that of a manufacturer than that of the occupier of land. In the case of International Derrick and Equipment Company v. Croix, 241 F.2d 216 (Fifth Circuit 1957) the court cited Roosth & Genecov Production Co., Inc. v. White, supra, as supporting this quotation from the opinion:
“ ‘A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.’ Restatement, Torts, Section 395.”
In Delhi-Taylor, supra, the danger involved existed by reason of a fixed condition on the premises, namely, a system of buried gas lines, a plat of which was furnished before work began. However true it may be that in some instances the relationship between the supplier of a chattel and one injured from its use may be “likened to that of an occupier of land,” the present case bears no resemblance whatsoever to that relationship. To the contrary, we deal here with a situation where, at most, Papco negligently caused a change of condition of the premises to the injury of Eaton after his entry. Even had Eaton been a licensee, recovery would have been allowed for this negligence irrespective of any issue of warning. Texas-Louisiana Paper Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936); Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App. Houston 1959); remanded for proper application of the law as to the sufficiency of evidence; 160 Tex. 23, 325 S.W.2d 126 (1959), and affirmed upon remand, 326 S.W.2d 915 (Tex.Civ.App. Houston 1959); Houston Belt & Terminal Ry. Co. v. O’Leary, 136 S.W. 601, 604-605 (Tex.Civ.App.1911, writ ref’d); also see 40 Tex.Jur.2d, Negligence, Section 68, page 553.
Papco relies upon a generalized warning to the superintendent of Eaton’s employer. It is undisputed in the testimony that Papco made no effort to warn Eaton or his employer of the dangerous condition of the scaffold arising from Papco’s negligence in failing to secure the toe board with six nails, and employing only two nails for that purpose. The jury found this to have been the defect that made the scaffold dangerous, and that it would have been adequately secured, had it been fastened with six nails, as claimed by Papco. In this situation the question of whether or *548not Aulds was warned as he testified, became wholly immaterial, and the case should not have been reversed by reason of a supposed error of the trial court in ruling on the evidence on this issue of warning. See Kanawha & Michigan Railway Company v. Kerse, 239 U.S. 576, 582, 36 S.Ct. 174, 60 L.Ed. 448, 451; Barmore v. Safety Casualty Company, 363 S.W.2d 355 (Tex.Civ.App. Beaumont 1962, writ ref’d n. r. e.); and 4 Tex.Jur.2d, Part 2, Appeal and Error—Civil Cases, Section 854, page 421. Even should it be considered that Aulds truthfully testified as to the warning given him and that given by him to the employees under him, yet the jury findings identified an entirely distinct danger from that which was the subject of this warning. The situation more nearly approaches that found in Guidry v. Neches Butane Products Company, 476 S.W.2d 666 (Tex.1972) in which the Supreme Court held that construction plans of the premises furnished the employer, and excavations made by the employer were insufficient to constitute warning of a soft spot in the ground surface some four to six feet away from the excavations.
Apart from the foregoing considerations, the trial court did not abuse its discretion in refusing to permit Papco to reopen the case and offer the testimony of the witness Tur chi.
What is required to constitute an abuse of discretion was set out in Grayson County v. Harrell, 202 S.W. 160, 163 (Tex.Civ.App. Amarillo 1918, writ ref’d) as follows:
“. . . but it has been held that ‘the abuse of discretion, to justify interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.’ Citizens’ Street Ry. Co. v. Heath, 29 Ind.App. 395, 62 N.E. 107; Anderson’s Law Dictionary.”
The concept quoted was approved by our Supreme Court in considering whether a trial court abused its discretion in refusing a defendant’s request for permission to withdraw answers filed prior to the filing of a plea of abatement in J. N. McCammon Inc. v. Stephens County, 127 Tex. 49, 89 S.W.2d 984, 986 (1936, opinion adopted). Furthermore, the same rule was specifically applied to measure the action of a trial court in refusing to reopen a case just before the charge was to be submitted to the jury for the purpose of the reading of a deposition already on file, in Safety Cas. Co. v. Malvoux, 204 S.W.2d 862, 865 (Tex.Civ.App. Beaumont 1947, writ ref’d n. r. e).
The record in this case will not sustain a finding that the trial court was prompted by “perversity of will, passion, partiality or moral delinquency” in refusing to permit Papco to reopen for further rebuttal testimony.
The background for the action of the trial court is not sufficiently set out in the majority opinion. In the presentation of Papco’s case in chief, Warren Aulds testified on cross-examination that he told his general foreman, including foreman George Kell, never to use the toe boards on the scaffold as a handhold. Rebuttal witnesses were offered by Eaton, and the testimony closed on the afternoon of October 3, 1973. The rest of the day and the morning of October 4, the court and counsel were engaged in the preparation of the charge. At 10:00 A.M. on the morning of October 4, counsel for Eaton requested the court in the presence of counsel for Papco to permit reopening of the case in order to offer George Kell as a rebuttal witness. Permission was granted with the only objection by Papco being that its witness, Warren Aulds, had returned to Oregon. At 1:00 P.M., just prior to the reading of the charge to the jury, Kell appeared and disputed the testimony of Aulds concerning the warning. It developed that Kell had, after Eaton’s fall, been requested by Pap-co’s counsel to furnish safety records to him, which he did. Kell was on the stand until 2 P.M. Upon the completion of his testimony the case was ready to go to the *549jury. A recess was procured by Papco, following which its counsel requested the court for a thirty minute delay in order to. produce James Turchi as a sur-rebuttal witness. The request was refused.
The proffered testimony of James Tur-chi appears in the bill of exception, and none of it was in rebuttal to any of the testimony of George Kell. It may be true, as stated in the majority opinion, that the testimony of Turchi may have been admissible in the case in chief, but it certainly could not be used to rebut Kell’s specific testimony that Aulds never warned him by showing transactions between the witness Turchi and persons other than Kell.
The bill of exception shows that James Turchi was a safety man for Papco, and had been contacted by counsel for Papco several months before the lawsuit and had cooperated with him in preparation of the defense. In these circumstances, no excuse whatever was presented to the trial court for Papco’s failure to call Turchi as a witness in the presentation of its case in chief. Also, Papco having knowledge of what George Kell knew about the case, and particularly safety meetings and warnings by Aulds, the trial court could have reasonably concluded that it was incumbent upon Papco to make arrangements for the attendance of Turchi as a witness as soon as it learned of the intention of Eaton to call Kell as a witness. Had this been done, there would have been no occasion to request a delay of thirty minutes to produce the testimony.
The case should not be reversed. The trial court did not act through “perversity of will, passion, partiality or moral delinquency” in refusing Papco the right to reopen, nor would the proffered testimony of Turchi have been admissible on rebuttal had the right been granted. Furthermore, the appellant has wholly failed to meet its burden of showing that the action of the trial court in disallowing the proffered witness, Turchi, was “ . . . such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Tex.R.Civ.P., Rule 434. A reversal of this case under the circumstances presented, is not warranted. The case took a long time to try, and all of the evidence related to the material issues in the case was presented by competent counsel for each of the parties. Reversal is not justified on the grounds set out in the majority opinion. I would affirm the judgment of the trial court.