Farmers' Gas Co. v. Calame

• Decision Date: 01 May 1924
• Docket Number: (No. 70.)
• Citation: 262 S.W. 546
• Parties: FARMERS' GAS CO. v. CALAME.
• Court: Texas Court of Appeals

262 S.W. 546

FARMERS' GAS CO. v. CALAME.

(No. 70.)

Court of Civil Appeals of Texas. Waco.

May 1, 1924.

Rehearing Denied June 5, 1924.

Appeal from District Court, Freestone County; A. M. Blackman, Judge.

Suit by the Farmers' Gas Company against Gillie B. Calame. Judgment for plaintiff, and defendant appeals. Reversed and remanded for another trial.

Karl F. Griffith, of Dallas, for appellant.

Williford & Geppert, of Fairfield, for appellee.

GALLAGHER, C. J.

Gillie B. Calame, appellee herein, instituted this suit in the district court of Freestone county on March 13, 1923, against Farmers' Gas Company, appellant herein, to recover damages in the sum of $6,500 for the destruction by explosion and fire of his gasoline filling station and his stock of oil, gasoline, and auto accessories in said station, situated in Wortham, Tex. Appellee alleged that the appellant was engaged in supplying natural gas to the inhabitants of said town, and that said explosion and fire and the resulting damage was caused by gas which escaped from appellant's mains in close proximity to said station. Appellee predicated his right to recover the damages sued for on the following acts of negligence charged against appellant, to wit: (1) That appellant's gas main or pipe line had not been constructed of proper materials. (2) That appellant's gas main or pipe line had not been constructed in a workmanlike manner. (3) That appellant failed to make proper inspection of its natural gas distributing plant, pipes, and mains, and also failed to make proper repairs thereto. Appellant answered appellee's petition by a general denial.

There are two district courts in Freestone county, having concurrent jurisdiction in civil cases. It appears that this case was filed to the April term of the Eighty-Seventh district court of said county. Appellant's answer was filed therein on April 2, 1923. It also appears that the case was transferred from said court to the Seventy-Seventh district court of said county. That court met on Monday, May 7, 1923, and remained in session until June 2, 1923. Appellee claims that said transfer and the resulting delay was at the instance of appellant's attorney and for his accommodation, and with notice that appellee would insist upon a trial at said May term.

Mr. Karl F. Griffith, who resided in Dallas, Tex., was the regularly employed attorney representing appellant generally, and he was also specially employed to represent it in this suit. He was the only attorney representing appellant at and prior to the trial of this case. On May 8, 1923, Mr. Spiller, one of the attorneys for appellee, notified Mr. Griffith that the case had been set for trial on May 15, 1923. Mr. Griffith immediately advised Mr. Spiller that it was absolutely impossible for him to attend said court to try said case on that date, or on any day that week, on account of prior and conflicting engagements which required him to be at and to try cases in other courts during the whole of said week. He disclaimed any purpose to delay appellee in securing a trial, and promised, if the case were set for the last week of the term, to be present and ready to try the same. Mr. Spiller agreed to take the matter up with the court and see if such setting could be secured. On May 12, 1923, Mr. Spiller notified Mr. Griffith that the court had refused to reset the case as requested, and that the trial of the same on May 15th would be insisted upon. Mr. Griffith again advised him that it was impossible for him to be present at said date, and that he would file a motion for a continuance, setting up the facts. Appellant on March 15, 1923, filed in said cause its application for continuance, duly verified by its said attorney, which application was in part as follows, to wit:

"That it cannot safely go to trial at this present term of court for the reason that its attorney of record, Karl F. Griffith, on May 15, 1923, will be engaged in the trial of a case in the district of Stevens county, Oklahoma; that on May 16, 1923, said attorney will be engaged in the trial of a case in the district court of Dallas county, Texas; and that, commencing May 17, 1923, said attorney will be engaged in the trial of a case in the district court of Stevens county, Texas, which case will consume the remainder of said week. Defendant would further show that all the above cases were set for trial prior to the setting of this instant case."

Said application also set up the absence of a material witness as a reason why appellant could not safely go to trial at that time. This feature of the motion will be referred to hereafter. Said application was presented to the court by Mr. Hall, an attorney at law, who advised the court at the time that he represented Mr. Griffith personally and that he did not represent appellant. The court overruled said motion, and permitted appellee to proceed to try the case, and appellee did try the case ex parte before the court without a jury. The court rendered a judgment in favor of appellee against appellant for the sum of $4,000. Appellant filed a motion for a new trial, which was overruled. The case is before us for review on appeal.

Appellant, in its motion for new trial, by separate and appropriate paragraphs, set out as grounds therefor the action of the court in overruling its application for a continuance, the unavoidable absence from the trial of its counsel, and the absence of its said witness. It also alleged therein that it had a meritorious defense to plaintiff's suit, stating the nature and elements of the same, and further alleged that the court, in refusing its application for a continuance, had unintentionally abused its discretion. Each of said paragraphs is copied in the appellant's brief as a separate assignment of error. Based on said assignments, appellant submits two propositions as grounds for the reversal of the judgment appealed from. Said propositions are as follows:

"(1) The trial court erred and abused its discretion in overruling appellant's application for a continuance in view of the fact that said application showed that appellant's only attorney, and the one who had familiarized himself with this case, would be unable to try this case at the time set for trial, due to prior engagements in other courts.

"(2) It was error on the part of trial court to overrule appellant's motion to vacate its judgment, to reopen the case, and to grant a new trial herein when appellant showed that it had been denied its day at court due to the unavoidable absence of its only attorney, and its material witness, Elmer F. Schmidt, and when appellant showed in addition thereto that it had a meritorious defense to the suit."

Appellee objects to the consideration of appellant's second proposition, on the ground that it is multifarious. The authorities cited and relied on by appellee to sustain his contention apply in terms to assignments of error. Appellant's assignments of error upon which said proposition is based are several and distinct, and, tested by the authorities cited and relied on by appellee, are sufficient. Appellant states in a parenthesis at the end of said proposition that it is germane to the second, third, and fourth assignments of error. Such assignments are copied in appellant's brief, as required by rule 32. Rule 30 requires that the propositions and points upon which the appeal is predicated shall be stated separately and shall be germane to one or more of the assignments so copied in the brief. We think that a complaint that the court erred in overruling a motion for new trial is a sufficient "proposition or point" to invoke a ruling from this court, notwithstanding it is based on and refers to three separate assignments of error.

The real issue in this appeal is presented by appellant's second proposition above quoted, and its first proposition will be considered merely as incidental and subsidiary thereto. Every litigant is entitled under our Constitution and laws to his day in court before he is adjudged to suffer either in his person or his property. His right to appear and be represented at such hearing by counsel of his own selection, familiar with his cause, is a very valuable right. The unwarranted denial of such right has been held to be fundamental error. Two Republics Oil & Gas Co. v. Reiser (Tex. Civ. App.) 247 S. W. 910; Hovey v. Halsell-Arledge Cattle Co. (Tex. Civ. App.) 176 S. W. 897, 900. If a defendant in a case, without negligence or fault on his part, is deprived of such right and his case tried ex parte, and judgment rendered against him, such judgment, on timely motion showing that his failure to be represented at such trial was without fault or negligence, and that he has a meritorious defense, should be set aside. Goodhue v. Meyers, 58 Tex. 405; Cowan v. Williams, 49 Tex. 380, 396, 397; Harris v. Musgrave, 72 Tex. 18, 21, 9 S. W. 90; Apache Cotton Oil & Mfg. Co. v. Watkins & Kelly (Tex. Civ. App.) 189 S. W. 1083, 1085; Hovey v. Halsell-Arledge Cattle Co., supra; Fitzgerald v. Wygal, 24 Tex. Civ. App. 372, 59 S. W. 621; Modern Woodmen v. Floyd (Tex. Civ. App.) 218 S. W. 1085; Hargrove v. Cothran, 54 Tex. Civ. App. 5, 118 S. W. 177; Hornbuckle v. Luther, 47 Tex. Civ. App. 352, 105 S. W. 995; Howard v. Emerson (Tex. Civ. App.) 59 S. W. 49; Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916. In many of the cases above cited, the absence of the attorney selected and relied upon by the defendant to represent him in the case, and prepared to do so, was caused by sudden sickness, incapacitating such attorney from attending the trial and from participating therein. Sickness, however, is not the only cause sufficient to excuse the absence of such attorney. A reasonable misunderstanding as to the setting of the case, or unexpected delays in travel, have been held sufficient. Holliday v. Holliday, 72 Tex. 581, 585, 10 S. W. 690; Fitzgerald v. Wygal, supra; Alexander v. Smith, supra. The fact that...