Austin Bridge Co. v. Christian

• Court: Oklahoma Supreme Court
• Writing for the Court: IRWIN
• Citation: Austin Bridge Co. v. Christian, 446 P.2d 46 (Okla. 1968)
• Decision Date: 08 October 1968
• Docket Number: No. 41977,41977
• Parties: AUSTIN BRIDGE COMPANY, a corporation, Plaintiff in Error, v. Nettie CHRISTIAN, Defendant in Error.

Page 46

446 P.2d 46

1968 OK 138

AUSTIN BRIDGE COMPANY, a corporation, Plaintiff in Error, v. Nettie CHRISTIAN, Defendant in Error.

No. 41977.

Supreme Court of Oklahoma.

Oct. 8, 1968.

Syllabus by the Court

1. Granting or refusing a continuance is discretionary with the trial judge and unless it clearly appears from the record that such discretion has been abused, this Court will refuse to find reversible error.

2. In a suit for damages for personal injuries, before a verdict of the jury will be set aside as excessive it must appear that the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption.

Appeal from the District Court of Pittsburg County; Robert J. Bell, District Judge.

Defendant in error recovered damages for personal injuries sustained by her against plaintiff in error. Plaintiff in error appeals from the order overruling its motion for a new trial. Judgment affirmed.

Foliart, Shepherd, McPherren & Mills, Oklahoma City, for plaintiff in error.

Gotcher & Gotcher, McAlester, for defendant in error.

IRWIN, Vice Chief Justice.

The parties will be referred to as they appeared in the trial court.

The plaintiff, Nettie Christian, sustained personal injuries as a result of an accident involving her automobile and equipment owned by defendant, Austin Bridge Company and commenced this action to recover damages for such injuries. The jury returned a verdict against defendant for $40,000.00 and judgment was rendered thereon. Defendant perfected an appeal from the order overruling its motion for a new trial.

The basic issues presented in this appeal are: (1) Did the trial court commit reversible error in denying defendant's motion for a continuance?; and (2) Is the verdict excessive?

The record discloses that the accident happened in February; the action was filed in May; and the trial was set for the following September 9th. The Court Clerk's Minutes reflect that the case was stricken from the trial docket because witnesses were 'unavailable, out of state'. It was then set for trial on November 15th. On November 11th, defendant filed a motion for continuance alleging that on September 3rd, plaintiff was examined by an orthopedic surgeon and he found plaintiff had made a good recovery, had no indication for further treatment, and did not have any permanent disability. The report of the orthopedic surgeon was attached to the Motion for Continuance and therein the surgeon stated that he had examined plaintiff on September 3rd; that 'she walks with a normal gait having no limp. She is able to stand erect easily. She has no pelvic tilt and walks without any difficulty and does not appear to be in any acute pain or discomfort. During the course of the examination she laughed on several occasions and is mentally alert and cooperative. She has no evidence of muscle spasm in any portion of her muscles throughout her body.' In the concluding paragraph the physician stated: 'This patient, in my opinion, has made a good recovery from whatever injuries she may have sustained due to her accident of February 15th. I find nothing to account for her minimal complaints and finally it is my opinion, she has no indication for any further treatment and does not have any permanent disability due to the * * * accident.' In this Motion for Continuance, defendant further alleged that on November 9th, plaintiff's attorney furnished it a copy of a medical report dated November 9th, which recited that he had performed a back operation on plaintiff October 25th, and had removed certain intervertebral discs. A copy of this medical report was attached to the motion. Defendant requested the continuance to give it an opportunity to take plaintiff's deposition to determine what, if anything, occurred between September 3rd, and October 25th, that brought about plaintiff's need for an operation, and to provide sufficient time for plaintiff's healing period from the operation to expire.

The Court Clerk's Minutes disclose that on November 11th, defendant's motion for continuance was denied and the case was set for trial on November 23rd, and plaintiff was ordered to submit to further examinations by a physician of defendant's choice, which she did. On November 23rd, the date set for the trial, defendant orally renewed its motion for a continuance; the same was denied; and the trial was commenced the following day.

Defendant, in effect, contends that the trial court abused its discretion in not granting a continuance because the trial was held one month after plaintiff's operation; that from a medical and practical standpoint the jury would have to guess as to how well the plaintiff would finally recover from the effects of the operation and would have to engage in pure speculation as to actual extent of any permanent disability that plaintiff...