Tabor v. Miller

• Citation: 389 F.2d 645
• Decision Date: 25 January 1968
• Docket Number: 16743.,No. 16742,16742
• Parties: Bonita M. TABOR, a Minor, by Lewis H. Tabor and Betty W. Tabor, Her Parents and Natural Guardians and Lewis H. Tabor and Betty W. Tabor, Individually and as Husband and Wife, Appellants in 16743, v. Richard F. MILLER and John R. Stearns and Herbert Boardman LORD, Jr. (3d-Pty. Pltf.), John R. Stearns, Appellant in 16742.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

389 F.2d 645 (1968)

Bonita M. TABOR, a Minor, by Lewis H. Tabor and Betty W. Tabor, Her Parents and Natural Guardians and Lewis H. Tabor and Betty W. Tabor, Individually and as Husband and Wife, Appellants in 16743, v. Richard F. MILLER and John R. Stearns and Herbert Boardman LORD, Jr. (3d-Pty. Pltf.), John R. Stearns, Appellant in 16742.

Nos. 16742, 16743.

United States Court of Appeals Third Circuit.

Argued January 8, 1968.

Decided January 25, 1968.

Murray C. Goldman, Philadelphia, Pa., for John R. Stearns.

Gordon W. Gerber, Dechert, Price & Rhoads, Philadelphia, Pa. (Read Rocap, Jr., Rocap & Rocap, Media, Pa., on the brief), for Bonita M. Tabor, Betty W. Tabor and Lewis H. Tabor.

H. Wallace Roberts, Krusen, Evans & Byrne, Philadelphia, Pa., for Richard F. Miller.

Ronald H. Sherr, Detweiler, Sherr, Huhn & Hughes, Philadelphia, Pa., for Herbert Boardman Lord, Jr.

Before McLAUGHLIN, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Plaintiffs' automobile was the first and defendant Stearns' was the third in line in a four car chain reaction automobile collision. The drivers of the second and fourth automobiles also were named as defendants, but the jury awarded verdicts against defendant Stearns only. Stearns appeals from the judgments entered against him in favor of the plaintiffs.

At the time of the accident, on June 9, 1961, appellant was on active duty in the United States Air Force. This status has continued to the present time. After the action had been placed on the trial list, appellant's counsel applied on November 23, 1966 for an indefinite postponement of the trial on the ground that appellant, who was then stationed in Selma, Alabama, was unavailable for trial because of his military service. The calendar judge denied the application and set January 9, 1967 as the trial date, subject to further order on application to the calendar judge at a later time. On December 8, 1966 appellant's counsel again applied for a postponement, this time until the fall of 1967. In support of the application he produced a letter from appellant stating that his commanding officer had informed him that it would be "highly desirable" for him to complete without interruption his current pilot training which would continue until July of 1967, and that he would be in Philadelphia for Christmas leave between December 23 and 28, 1966. The court denied the request and ordered that appellant's trial deposition be taken during his Christmas leave. He had already been examined in a pretrial oral deposition taken by his counsel in 1963. At the commencement of the trial on January 12, 1967 appellant's counsel again requested a continuance, which was denied.

If appellant had been unable to appear because he was on active duty in the armed forces he would have been entitled to a stay of the action under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. App. § 521, "unless, in the opinion of the court, the ability of * * * the defendant to conduct his defense is not materially affected by reason of his military service." The court had discretion to determine, from all the circumstances of the case, whether a continuance was justified. Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943). In the present case appellant never stated that it would be impossible for him to appear at trial to testify and concededly his presence was important principally for that purpose. Appellant testified on deposition only two weeks before the trial, and the only prejudice he might have suffered resulted from his failure to appear before the jury in person. Neither he nor his counsel suggested that the trial be held during his Christmas leave, or that the court schedule a weekend session to accommodate his testimony. Indeed, appellant's letter, written after the trial date was set, did not state that it would be impossible for him to appear, but concluded with the statement that it was "more important" for him to complete his training uninterrupted than to appear at trial. In view of these circumstances, as well as the fact that more than five years had elapsed from the time of the accident at the time appellant made his initial request for a postponement, we conclude that the district court acted within the bounds of its discretion in denying postponement.

Appellant excepted to the court's instruction that the jury should consider the life expectancy of plaintiff Betty Tabor in computing damages for future pain and suffering, if it found that she would experience permanent discomfort as a result of the accident. He claims that the instruction was erroneous because of the absence of any evidence, such as mortality tables or expert opinion, regarding life expectancy. While mortality tables and technical data are admissible in Pennsylvania on the issue of life expectancy, they are not...