Fritsch v. J. M. English Truck Line

• Decision Date: 27 February 1952
• Docket Number: No. A-3435,A-3435
• Citation: 151 Tex. 168,246 S.W.2d 856
• Parties: FRITSCH v. J. M. ENGLISH TRUCK LINE, Inc.
• Court: Texas Supreme Court

Page 856

246 S.W.2d 856

151 Tex. 168

FRITSCH v. J. M. ENGLISH TRUCK LINE, Inc.

No. A-3435.

Supreme Court of Texas.

Feb. 27, 1952.

Rehearing Denied April 2, 1952.

Morris, Underwood & Oldham, Houston, Graves, Dougherty & Greenhill, Austin, for petitioner.

Dyess & Dyess, Houston, for respondent.

CALVERT, Justice.

The only question in this case decided by the Court of Civil Appeals and argued in this Court is this: Did the trial court abuse its discretion in overruling defendant's motion for continuance? The Court of Civil Appeals has held that it did and on that ground alone has reversed the trial court's judgment for plaintiff, which judgment was based upon a jury's answers to special issues, and has remanded the cause for retrial. 243 S.W.2d 464.

The application for writ of error by a single point of error challenges the correctness of the ruling of the Court of Civil Appeals. Defendant has not favored us with an answer or reply to the application. In oral argument, advanced on the submission of the cause, defendant's counsel not only contended that the Court of Civil Appeals had ruled correctly on the continuance question but contended also, for the first time, that this Court has no jurisdiction of the case and therefore should not have granted the application in the first instance. In the application for writ of error jurisdiction of this Court was said to attach under section 2 of Article 1728, V.A.C.S., in that the holding of the Court of Civil Appeals in this case was in conflict on a question of law with prior holdings of this Court and of other Courts of Civil Appeals. Two of the cases with which the holdings here was said to be in conflict so as to confer jurisdiction upon this Court, and with which we think it is conflict, are Hensley's Adm'rs v. Lytle, 5 Tex. 497, 55 Am.Dec. 741 and Campbell v. McCoy, 3 Tex.Civ.App. 298, 23 S.W.2d 34 (no writ history).

The witness whose absence was made the basis of the motion for continuance was one O. E. Greenhaw, who was not an officer nor an employee of the defendant, and, so far as the record reflects, was in no way connected with nor obligated to the defendant. Plaintiff does not contend that the testimony of this witness was not material to the defendant's case; he contends only that the defendant did not establish the use of such diligence to procure the attendance of the witness nor to obtain his testimony as to require the granting of the motion for continuance. To properly evaluate the rival contentions of the parties on this issue it becomes necessary to review the sequence of events leading up to the filing of the motion for continuance.

Plaintiff's suit was one for damages for personal injuries alleged by him to have been received on November 8, 1947. His suit was filed on November 3, 1949, almost two years later.

The record reflects, largely through an unchallenged pleading sworn to by plaintiff's counsel and controverting the defendant's motion for new trial, that at plaintiff's request the case had been set for trial on November 20, 1950, at which time plaintiff announced ready for trial but the defendant announced that it was not ready; that the parties then joined in a motion requesting that the case be passed and be given a preferential setting for the week of December 11th, which motion was granted; that on Friday, December 8th, the docket of those cases set for the week of the 11th was called for the purpose of determining which cases would be ready for trial, and on such call both parties to this cause announced ready without qualification; that accordingly the case was listed as the 15th case on the docket ready for trial when reached by any of the district courts of Harris County during the following week; that when the case was reached for trial on Tuesday morning, December 12th, defendant filed its motion to withdraw its announcement of ready and for continuance based on the absence of Greenhaw and two other witnesses, which motion was overruled by the presiding judge on the ground that defendant had failed to use diligence in procuring the attendance of the witnesses. Two of the witnesses later appeared and testified on the trial and any right to a continuance by virtue of their absence went out of the case.

Rule 252, T.R.C.P., formerly Article 2168 of the statutes, reads as follows: 'If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.'

From the very language of the rule it will be noted that the only difference between a first and a subsequent motion is that the first motion is not required 'to show that the absent testimony cannot be procured from any other source.' This fact is brought into much sharper focus by a review of the history of Rule 252. See General Laws, 1848, 2nd Leg. ch. 95, sec. 15, 3 Gammel's Laws of Texas, 106, 109; Arts. 1277 and 1278, R.C.S.1879 and R.C.S. 1895; General Laws, 1897, 25th Leg., ch. 91, 10 Gammel's Laws of Texas 1171; Art. 2168, R.C.S.1925. In matters not therefore whether the motion in this case be regarded as a first or a second motion; the requirement of the rule that there be a showing of diligence to procure the testimony applies to the one as well as to the other. The rule requires that the party seeking the continuance make affidavit 'that he has used due diligence to procure such testimony, stating such diligence,' and Rule 251, T.R.C.P., directs that a continuance shall not be granted 'except for sufficient cause'. Of course the absence of a material witness is 'sufficient cause', but only if proper diligence has been used to procure the testimony of the witness.

Defendant's motion was in substantial compliance with the requirements of Rule 252, and contained an allegation that each of the three witnesses was out of the county but that each was expected back in the county by Friday, December 15th. When Greenhaw failed to appear by noon of Thursday the 14th the Court recessed the trial until the morning of the 15th to give defendant additional time to obtain the presence of the witness.

With respect to the witness Greenhaw, the motion set out, in the words of the Rule, that the defendant had used due diligence to procure the testimony of said witness, and by way of stating such diligence as required by the Rule, set out...