I respectfully dissent. I would sustain Smith's second point of error, reverse the trial court's judgment and remand the cause to the trial court.
By his second point of error, Smith contends the trial court erred, as a matter of law, in refusing to allow him to testify in his own defense. I agree.
The majority points out that the Houston Court of Appeals for the First District has *Page 722 twice considered whether a party who has not responded to interrogatories or supplemented discovery responses should be allowed to present evidence in his own behalf. See HenryS. Miller Co. v. Bynum, 797 S.W.2d 51 (Tex.App. — Houston [1st Dist.] 1990, writ granted); NCL Studs, Inc.v. Jandl, 792 S.W.2d 182 (Tex.App. — Houston [1st Dist.] 1990, writ denied). In each instance, the court determined the party had shown good cause, and the trial court did not err in permitting the party's testimony.
Those cases do not control here. In the case before us, Smith complied with Southwest's discovery request; therefore, the trial court erred by invoking Rule 2151 sanctions against Smith.
Southwest initiated this action in May 1988. After filing, Southwest forwarded interrogatories to Smith. In August 1988, Smith answered the interrogatories.
Rule 166b, paragraph 2(d) of the Texas Rules of Civil Procedure provides:
A party may obtain discovery of the identity and location (name, address and telephone number) of any potential party and of persons having knowledge of relevant facts. A person has knowledge of relevant facts when he or she has or may have knowledge of any discoverable matter. The information need not be admissible in order to satisfy the requirements of this subsection and personal knowledge is not required. (Emphasis added.)
By this provision, a party may discover the identity and location of a potential party and of persons having knowledge of relevant facts.
Southwest's interrogatories and Smith's answers read as follows:
*Page 723INTERROGATORY NO. 1: Please state your full name, address and present employment:
ANSWER: Arnold Thomas Smith
126 Quince, Hereford, Texas 79045
Self-employed, cattle buyer
INTERROGATORY NO. 2: State your date of birth, driver's license number, social security number, and what other names you have gone by during your lifetime.
ANSWER: DOB: November 2, 1932
DL# : 08877635, Texas
SS# : 449-56-0361
Arnold T. Smith
INTERROGATORY NO. 3: Describe any criminal record you may have, including the nature of the charge, date and place of arrest, and conviction, if any.
ANSWER: NONE
INTERROGATORY NO. 4: Describe in detail any conversations you have had with the Plaintiff or plaintiff's representative concerning this account.
ANSWER: 1. During October, 1988, I asked Wayne Chastain to discuss the account to straighten out the bill.
2. The next conference was at lunch with Wayne Chastain after receipt of demand letter. The conversation concerned my position which was well received. Mr. Chastain agreed to check out my explanation of the account.
INTERROGATORY NO. 5: State the name and address of each person, including experts, having any knowledge of relevant facts related to the account which is the basis of this suit.
ANSWER: 1. Bookkeeper, Pam McCormick, Hereford, Texas
2. Manager, Wayne Chastain, Canyon, Texas
INTERROGATORY NO. 6: State the name and address of any potential party to this lawsuit, not already a party hereto.
ANSWER: NONE
INTERROGATORY NO. 7: State the name, address and qualifications of each expert whom you expect to call as an expert witness at the trial of this case, the subject matter concerning which the expert expects to testify, and attach a
copy of any report, including factual observations and opinions, which has been prepared by any such expert.ANSWER: NONE
INTERROGATORY NO. 8: State fully the factual basis of each defense which you now assert or will assert in this cause.
ANSWER: Proper offsets and credits have not been applied to my statement.
INTERROGATORY NO. 9: If you will do so without a motion to produce, attach to your answers to these interrogatories a copy of each document, writing, paper, or letter which you intend to use as a basis for any defense in this action. If you will not do so without a motion to produce, then state at length and verbatim the contents of each such document, writing, paper, or letter.
ANSWER: Copies of checks and bank notes, concerning my cattle trading. The majority of records pertaining to this suit are in Plaintiff's possession.
I note that Southwest neither asked for, nor, under the rules was entitled to, a witness list. However, under a pretrial order, Smith provided a list of all of his witnesses to Southwest seven days before trial. Smith's name was on the list he gave Southwest. By the above interrogatories, Southwest asked for, among other things, the name and address of any person having any knowledge of relevant facts. Even assuming arguendo that when Southwest served the interrogatories it did not know that Smith had knowledge of relevant facts, Smith's answers disclosed that he did have knowledge of the relevant facts. Thus, Southwest received from Smith all the information it requested or to which it was entitled.
Nevertheless, Southwest's position is that Smith's name had to be listed in response to interrogatory number 5 before he could testify in his own defense. The majority has adopted that position. I am unwilling to give that restrictive interpretation to the Rules of Civil Procedure as applied to Smith's answers to Southwest's interrogatories.
I am not persuaded that the objectives of Rules of Civil Procedure, particularly discovery rules, authorize or compel a strict interpretation. To the contrary, Rule 1 states:
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction. (Emphasis added.)
The commentary to this rule relates that "the prime consideration in making, and in the administration of, any set of modern procedural rules is function notmethod, that method shall be the servant,function the master. . . . No mere rule of procedural form or courtesy should be allowed to delay or control the disposition of the litigation upon its merits." (Emphasis added.)
Texas courts have consistently held that the primary purpose of the Rules of Civil Procedure is to dispose of cases on the merits. Texas Employment Commission v. Stewart OilCo., 153 Tex. 247, 267 S.W.2d 137 (1954). In RedRiver Valley Pub. Co. v. Bridges, 254 S.W.2d 854, 861 (Tex.Civ.App. — Dallas 1952), the court pointed out that "[t]he new Rules (i.e., the Rules of Civil Procedure adopted by the Texas Supreme Court in 1941) were adopted to eliminate, within reason, pure technicalities, not to perpetuate old ones." More recently, our Supreme Court instructed, inJampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984), "that the ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what is revealed, not by what facts are concealed."
When Smith attempted to testify in his own defense, Southwest objected that, because Smith's name was not listed in response to interrogatory number 5, Smith should not be allowed to testify. In response, Smith asserted that he thought the interrogatory asked for persons other than *Page 724 himself. I agree, and the interrogatory sequence supports that interpretation.
Here, Smith did not conceal facts. Instead, he responded directly and rationally to Southwest's interrogatories. His answers divulged the information sought. The purpose of the discovery rules is to encourage full discovery prior to trial and to prevent trial by ambush. Gee v. Liberty Mutual FireInsurance Co., 765 S.W.2d 394 (Tex. 1989). Realistically, I cannot say that Smith's answers ambushed Southwest. If anyone was ambushed here, it was Smith. In that regard, I note that Southwest made no complaint in this Court or the trial court concerning any inadequacy in Smith's answers to any of the interrogatories. I am persuaded that Southwest received exactly what it asked for by the interrogatory. Smith concealed nothing. Applying a liberal interpretation of the Rules of Civil Procedure to Smith's answers, I conclude the trial court erroneously denied him the right to testify in his own behalf.
Furthermore, I disagree with Southwest's position that Smith had a duty to supplement his answers to the interrogatories not less than thirty days before trial. Rule 166b, paragraph 6(a) provides:
a. A party is under a duty to reasonably supplement his response if he obtains information upon the basis of which:
(1) he knows that the response was incorrect or incomplete when made;
(2) he knows that the response though correct and complete when made is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading[.]
I find nothing in the record to show that Smith obtained additional information from which he knew that his original response was incorrect or incomplete, or that he knew that his original response, though correct and complete when made, was no longer true and complete and that his failure to amend his answers was misleading. Furthermore, I am unconvinced that Smith's failure to redundantly list his name, address and telephone number in response to interrogatory number 5 makes his response to Southwest's interrogatories incomplete, incorrect or misleading.
Moreover, even if we assume arguendo that Smith had a duty to supplement, then the record shows sufficient supplementation. In this regard, the record shows that Smith filed an affidavit in support of his opposition to Southwest's motion for summary judgment.
In the affidavit, Smith declared personal knowledge of the following facts, among others: (1) monies which he tendered to Southwest were not applied to lot 3686, but elsewhere, without his consent or knowledge; (2) his account was overcharged for hay; (3) a check for $2,825.84 was not credited to his account; (4) Southwest shipped a pen of cattle short one steer worth approximately $750.00, because of the alleged unpaid feed bill; (5) he neither received, nor was his account credited with, his last paycheck and annual bonus; (6) while working at Southwest, he became aware that the bookkeeper's records did not agree with the general ledger, and many times the bookkeeper would simply write off the difference; (7) often, the bookkeeper applied credits improperly and to the wrong feed bills; (8) there were many unexplained delays in applying credit; and (9) he was not credited with a check for twenty to thirty thousand dollars which he co-endorsed.
The affidavit, filed almost four months before trial, clearly showed Smith to be a person having relevant knowledge. The Rules of Civil Procedure do not specify the form of the supplementation required by Rule 166b, paragraph 6(a). Only a narrow construction of the rules allows the conclusion that the affidavit does not satisfy the supplementation requirement. Thus, when I follow the liberal construction dictated by Rule 1, I conclude that the affidavit satisfied the requirement.
Also, I conclude that the trial court erred by invoking sanctions against Smith under Rule 215. That rule provides, in pertinent part, as follows:
*Page 725A party who fails to respond to or supplement his response to a request for
discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.
Sanctions must be predicated on a party's failure to respond or to supplement his response. Since Smith complied with the discovery request, the court should not have invoked sanctions.
I would sustain Smith's second point of error, reverse the trial court's judgment, and remand the case.