UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-60466 Summary Calendar

FRANK O’BRIEN,

Plaintiff-Appellee,

VERSUS

WAL-MART STORES INC.,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Mississippi (5:95-CV-26-Br-S) December 23, 1996

Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.

PER CURIAM:1

Wal-Mart Inc. appeals the adverse judgment against it entered

by the district court pursuant to the jury’s verdict in this slip

and fall case. Wal-Mart assigns three errors: (1) Exclusion of

evidence that Plaintiff failed to disclose prior related litigation

in answers to interrogatories; (2) refusal to give part of a charge

requested by Wal-Mart; (3) insufficiency of the evidence to support

1 Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the amount of damages awarded by the jury. We affirm.

In answers to interrogatories Plaintiff failed to identify the

suit entitled State Life Insurance Co. v. O’Brien in which O’Brien

sought disability benefits resulting from injuries sustained in the

fall at Wal-Mart, and in which the court had found that O’Brien had

engaged in a scheme to defraud the insurance company by over

insuring himself to gain a profit. The parties do not make clear

whether Wal-Mart wished only to cross examine O’Brien about why he

had not declared this suit, or whether it also wanted to get before

the jury the court’s finding in that suit. The record indicates

both. Wal-Mart’s counsel admitted no prejudice from the failure to

disclose (because he became aware of the matter through other

means) and the district court ruled that the order and reasons in

that case were not material to the instant trial. We see no abuse

of discretion.

Wal-Mart argues that the court’s instruction to the jury did

not permit the jury to find that the accident may have been

entirely the fault of Plaintiff. Technically, the instruction can

be read that way. However, Appellant did not object to the

comparative negligence instruction given by the court (and indeed

it was a correct instruction) and, in the charge objected to, the

court was obviously trying to allow for the fact that Mississippi

has done away with the “open and obvious” defense. We also note

that the jury did not assign any negligence at all to the

Plaintiff. The error in the instruction, if any, was therefore

2 harmless.

Finally, Appellant’s contention that the damage award is

excessive is without merit. The record fully supports the amount

awarded. The fact that the verdict was general does not change

that result.

AFFIRMED.

3