Carlson v. BMW Indus. Service, Inc.

• Decision Date: 10 November 1987
• Docket Number: No. 86-225,86-225
• Citation: 744 P.2d 1383
• Parties: Edward J. CARLSON and Sherry Carlson, Appellants (Plaintiffs), v. BMW INDUSTRIAL SERVICE, INC., a Utah corporation, and Steve Berry, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1383

744 P.2d 1383

Edward J. CARLSON and Sherry Carlson, Appellants (Plaintiffs), v. BMW INDUSTRIAL SERVICE, INC., a Utah corporation, and Steve Berry, Appellees (Defendants).

No. 86-225.

Supreme Court of Wyoming.

Nov. 10, 1987.

James Gusea of Vines, Gusea & White, P.C., Cheyenne, and Jon L. Holm, and Steven A. Christensen, Jeffrey C. Johnson of Holm and Christensen, P.C., Denver, Colo., for appellants.

Roy A. Jacobson, Jr. of Vehar, Beppler, Jacobson, Lavery & Rose, P.C., Kemmerer, and Gary B. Ferguson of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for appellees.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

In this case, appellants Edward and Sherry Carlson brought a tort action against Steven Berry and BMW Industrial Services, Inc. (BMW), for damages resulting from a collision between a motorcycle driven by Edward Carlson and a pickup owned by BMW. A jury awarded appellants total damages of $51,000, which was reduced to $26,010, based upon the jury finding that appellant Edward Carlson was forty-nine percent negligent. The trial court denied subsequent motions for a new trial and for additur. Appellants raise the following issues on appeal:

I

Did the trial court abuse its discretion and prejudice the plaintiffs in denying the plaintiffs' motions for continuance made prior to and during trial?

II

Was the jury panel prejudiced during the voir dire of Austin Day, and did the trial court abuse its discretion in failing to dismiss that jury panel?

III

Did non-evidentiary comments of defendants' counsel regarding plaintiffs' use of a dangerous instrumentality prejudice the jury's finding of comparative negligence?

IV

Was the jury's damages award influenced by passion and prejudice and therefore insufficient as a matter of law?

We will affirm.

On March 13, 1984, Steven Berry, an employee of BMW was returning to the Antler Motel in Kemmerer, Wyoming, in a company pickup. As he began to turn left across the southbound lane of Coral Street and into the motel parking lot, Mr. Berry saw a motorcycle approaching his truck and slammed on the brakes. Edward Carlson, the rider of the motorcycle, also braked, but skidded into the left front corner of the pickup and was thrown from his motorcycle. As a result of the accident, Mr. Carlson suffered numerous injuries, including a herniated disk.

Appellants then filed an action to recover medical expenses, lost wages, and damages for impairment of the quality of their marital and family life. The jury awarded appellants damages of $51,000, but also concluded that Carlson was forty-nine percent at fault in the accident. The court then reduced the damages in proportion to the fault attributed to Carlson and entered judgment for appellants in the amount of $26,010.

I

Appellants first argue that the trial court abused its discretion when it denied two motions for continuance made before and during the April 16, 1986 trial. We begin by noting that the trial court has the sound discretion to grant or deny a motion for continuance, and that discretion will not be disturbed on appeal. Shanor v. Engineering, Inc. of Wyoming, Wyo., 705 P.2d 858, 861 (1985). We also have held that a trial court may deny a continuance if the need for the continuance is caused by the movant. Bacon v. Carey Company, Wyo., 669 P.2d 533, 535 (1983). The ultimate issue when abuse of discretion is raised is whether the trial court exercised sound judgment under the circumstances, avoiding an arbitrary and capricious decision. England v. Simmons, Wyo., 728 P.2d 1137, 1140 (1986).

A trial court is statutorily authorized to grant a continuance when good cause to do so is shown by the party seeking the continuance. ¹ The trial court may not grant a continuance based on a mere whim, request, or the convenience to counsel without a substantial factual or legal reason for doing so. Shanor v. Engineering, Inc. of Wyoming, supra. A movant seeking a continuance to secure missing testimony or other evidence must demonstrate by affidavit that he used due diligence in attempting to procure the evidence or any missing testimony. ² Due diligence in the context of a missing witness, is not satisfied when a party simply secures agreement from the witness that he will attend trial, but a party must make every reasonable effort to insure that his witness will be present. This can include alternate travel plans or schedules and the use of depositions to preserve important testimony. A party choosing to forego these measures and rely on less effective means of securing testimony does so at his own risk. Hinton v. Saul, 37 Wyo. 78, 84-85, 259 P. 185, 186-187 (1927); and Larion v. City of Detroit, 149 Mich.App. 402, 386 N.W.2d 199, 203 (1986).

The first motion for continuance in question was based on appellant's request to allow Edward Carlson to undergo an "MRI" examination before trial. This exam would have given Mr. Carlson's physician, Dr. Bryan, more data to determine the extent of Mr. Carlson's residual disability from the accident. The motion was timely filed on April 7, 1986, and later renewed on April 14, 1986. The trial court denied both the initial motion and the renewed motion.

Appellants urge that the trial court's ruling effectively denied them an opportunity to present fairly and completely their case. In support of this position they cite two cases from other jurisdictions in which an appellant with no control over the circumstances causing the need for continuance was held to have been denied a continuance improperly. See Yates v. Superior Court in and for County of Pima, 120 Ariz. 436, 586 P.2d 997 (1978); and Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842 (1975). These cases, however, are not precisely on point. In Yates, the appellant's motion for continuance, although filed two weeks before a medical liability review panel hearing, was not heard by the panel until two days before the hearing, working an obvious injustice beyond appellant's control. Yates v. Superior Court in and for County of Pima, supra, 586 P.2d at 998. In this case, the trial court promptly considered the relevant motions for continuance, ruling on them the same day they were filed. The Gonzales decision involved a trial court refusing to grant a continuance when the plaintiff unavoidably was unable to be present at his own civil trial. Gonzales v. Harris, supra 542 P.2d at 843-44. Here, appellants clearly were present for the April 16, 1986, proceedings.

Appellants also direct us to the holding in Salazar v. State, Alaska, 559 P.2d 66 (1976). In Salazar, a criminal defendant was held to have suffered an abuse of trial court discretion when he was denied a continuance to secure the testimony of an absent police officer. The decision in Salazar, however, was grounded on an appellate finding that the defendant had been diligent in attempting to secure the missing evidence before requesting the continuance. Salazar v. State, supra at 74. That is not the situation here.

The trial record clearly indicates that this trial had been continued three times before the first motion at issue, once at appellants' request, and twice at appellees' request. The trial, originally scheduled for December 16, 1985, was subsequently moved to January 13, 1986, then to March 24, 1986, eventually set for April 16, 1986. In conjunction with the April 16 trial scheduled in the February 27, 1986, pretrial order, the parties were to designate their experts by March 1 and discovery was to end on March 21. This gave appellants three additional months from the original date set for trial to conduct discovery and four additional months to prepare their evidence. Further, we can only assume that appellants' counsel, being assiduous litigators, had been preparing the case under the pressure of the earlier trial dates before the grant of the continuance that moved the trial back to April 16. Despite these repeated grants of additional preparation time from the trial court, appellants did not schedule the MRI exam until April 11, 1986.

Based on these circumstances, we hold that appellants were not diligent in preparing the MRI exam evidence. We are not unmindful that the MRI, as it was scheduled, occurred after a follow-up hernia surgery on Edward Carlson that took place in late February or early March. We fail to understand, however, why appellants were willing to proceed to trial three times before this surgery without an MRI that was available to them for at least four months, but could not proceed without an MRI scheduled only five days before a trial date known to them since February 27, 1986. Appellants had ample time, more than they could have originally anticipated, to conduct discovery and prepare their evidence. The trial court's denial of the first motion for continuance at issue here was not arbitrary and capricious and was not an abuse of its discretion.

The second motion for continuance was raised informally on the second day of trial after the clerk of court informed appellants' counsel that Dr. Bryan could not fly from Salt Lake City to Kemmerer that morning due to inclement weather. After receiving this information, the following colloquy took place between the court and appellants' counsel:

"MR. HOLM: Your Honor, my witness is under instrument flight rules and unable to leave, as far as I know. I just received a note from Mr. McCloud that he is socked in by the weather.

"THE COURT: Do you have any other witnesses besides the one that's socked by the weather?

"MR. HOLM: No, your Honor, I don't.

"THE COURT: Then does the Plaintiff rest?

"MR. HOLM: I suppose we have no choice, your Honor. If we can't continue the matter until such time as he can be here, then we would rest.

"THE COURT: Call your next witness, Mr. Ferguson." (Emphasis added.)

Mr. Holm's statement, "If we can't continue the matter until such time as he can be here, then we would rest" apparently was made in...