Frymire Engineering Co., Inc. v. Grantham, 17562

Decision Date20 December 1974
Docket NumberNo. 17562,17562
PartiesFRYMIRE ENGINEERING COMPANY, INC., Appellant, v. Patricia GRANTHAM, Appellee.
CourtTexas Court of Appeals

Page 820

517 S.W.2d 820
Patricia GRANTHAM, Appellee.
No. 17562.
Court of Civil Appeals of Texas,
Fort Worth.
Dec. 20, 1974.
Supplemental Opinion Jan. 3, 1975.
Rehearing Denied Jan. 24, 1975.

Bailey, Williams, Westfall & Henderson, and C. Edward Fowler, Jr., Dallas, for appellant.

Wilson, Berry, Jorgenson & Johnson, and Ken W. Fuqua, Dallas, for appellee.


BREWSTER, Justice.

The plaintiff, Patricia Grantham, sued Fox & Jacobs Construction Company, Inc. and Frymire Engineering Company, Inc., for damages that resulted from a fire that occurred at plaintiff's home. The suit was based on negligence. For the sake of brevity we will refer herein to the last named defendant as Frymire. Frymire filed third party complaints against General Electric Company and Cerro Corporation. The case was set for trial by the attorneys for the week beginning January 14, 1974. After this setting was made David Westfall, one of the attorneys of record for Frymire, received a summons for jury duty in Dallas County for the week starting January 14, 1974, at 8:45 A.M. On January 8, 1974, Frymire, through its attorney, Westfall, filed a motion for a continuance based on the ground that he had been called for jury duty for the week that the case had been set for trial. The third party defendants, General Electric and Cerro Corporation, also filed motions for continuance based on other grounds. On January 8, 1974, the trial court ordered that the motions for continuance filed by the third party defendants, General Electric and Cerro Corporation, be granted. In and same order he overruled Frymire's motion for a continuance. He then on January 14, 1974, severed the plaintiff's claim against Frymire from all other actions and on that date when no one appeared at trial time in behalf of Frymire, the court proceeded to try the plaintiff's case against Frymire. Defendant's attorney, Westfall, instead of appearing in court in Frymire's behalf at trial time, chose to and did at that time appear in Dallas County and rendered the jury service for which he had been summoned.

At the conclusion of the trial the court rendered judgment in favor of the plaintiff and against the defendant, Frymire, for $15,382.91 and Frymire here appeals from that decree urging 47 points of error.

Frymire's first 6 points of error attack the court's action in overruling its motion for continuance based on the fact that one of its attorneys of record, Westfall, had been summoned for jury duty on the same date that the case was set for trial. Frymire contends that the trial court's ruling on this motion constituted an abuse of its discretion.

We overrule each of those points of error.

Whether or not a motion for continuance such as the one involved here

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should or should not be granted is a matter that lies within the sound discretion of the trial court. His ruling thereon will not be disturbed by an appellate court unless an abuse of discretion is shown. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup., 1963) and 112 A.L.R. 594 (Continuance--Counsel Engaged Elsewhere). For many other cases so holding see 13 Tex.Jur.2d 54, Continuance, Sec. 124, note 10, and Sec. 137, p. 73.

Rule 253, Texas Rules of Civil Procedure provides: 'Except as provided elsewhere in these rules, absence of counsel will not be good cause for a continuance . . . of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record.'

The rules do not elsewhere provide that the grounds urged by appellant entitled him to a continuance as a matter of right.

In passing on the question of whether the trial court abused its discretion in overruling the motion for a continuance, the reviewing court will consider the entire record including the evidence introduced at the hearing of the motion for new trial. Texas Employers' Insurance Association v. Yother, 306 S.W.2d 730 (Fort Worth, Tex.Civ.App., 1957, writ ref., n.r.e.).

The burden is on one moving for a continuance to show that he is entitled to it. See Mullin v. State, 114 Tex.Cr.R. 225, 24 S.W.2d 423 (Ct. of Crim.App., 1930) and 13 Tex.Jur.2d 61, Continuance, Sec. 127.

The evidence before the trial court would justify the trial court in finding and believing that the attorney, Westfall, received his jury summons at least 10 days before the day the case was set for trial.

Frymire's pleadings were signed 'Bailey, Williams, Westfall & Henderson, Attorneys for Defendant, Frymire Engineering Co., Inc., By David Westfall.'

Mr. Westfall testified as follows: when his law firm acquired this business, the job of defending Frymire was assigned to him; there are four lawyers in this law firm that represented Frymire; if any other of the firm's lawyers knew anything about the case up to trial time he did not know it; he had had the file for about one year; he considered the case to be complex to the extent that no other member of his law firm could take over the file with only a moment's notice and try it; he filed his motion for a continuance on January 8, 1974, and had a law student employee take it to Denton and file it; this motion was overruled on January 8, 1974; he knew before trial date that the trial court had overruled Frymire's motion for a continuance, had granted motions for continuance for the two third party defendants, and that plaintiff was going to, on January 14, 1974, ask the court to sever plaintiff's case against Frymire from the other matters involved therein and to proceed with the trial of plaintiff's action against Frymire; he had been summoned to serve jury duty in Dallas County on the same date that this case was set for trial; he was qualified to serve on the jury; he had no legal reason to be excused from jury service, but was told by the judge in charge of the jury that his jury service could be postponed until some later week in the next two or three months that Westfall would designate; Westfall told him that he did not desire the service postponed; Westfall was told that Judge Boyd, the trial judge in the case, had, before ruling on the motion for continuance, called the Dallas judge who was in charge of the jury and was advised by him that he would gladly postpone Westfall's service to a later date; Westfall's feeling was that he should try the case with the two third party defendants in it, and this was one factor causing his strong desire to do his jury service during the week that this case was set for trial; he did not ask for the jury summons, but since he got it, he weighed the

Page 824

situation that confronted him on January 14, 1974, and chose to serve on the jury instead of to try this case; he cannot deny that he used the jury summons to try to postpone the trial against his client; he wanted the delay so he could try the case against the third party defendants at the same time; he chose not to postpone his jury service even though he could have gotten it postponed and even though he knew the court had overruled his motion for a continuance; no one showed up in Frymire's behalf on the date the case was set for trial; Westfall was offended because the trial judge had taken it upon himself to call the Dallas judge in charge of the jury to see if Westfall could get his jury service postponed; the reason Westfall did not show up at trial time was because he went to respond to his jury summons at that time; he did service on the jury from Monday through Wednesday of that week; he did not have an attorney from his office or a local attorney appear at the trial for Frymire on the date the case was set for trial because he did not believe that the trial court and plaintiff's counsel would go to trial in the case without him being there.

Frymire made no effort to make the record show that each of the other three lawyers in his law firm was unable, during the interval between the time Westfall received his jury summons and trial time, to take over the file in the case and prepare himself to ably represent Frymire in the defense of the case.

The pleadings in this case reveal that this is a suit for damages. The theory was that defendant was guilty of negligence that proximately caused such damages. We judicially know that the trial judge has had years of trial experience and it was his function, with the knowledge he had of the case, to decide whether or not a negligence case such as this was of such a complex nature that another able lawyer in the Westfall firm could not have, during the time period that was available to him, taken over the file and prepared himself to defend Frymire.

In the case of Thompson & Scott v. Hart, 157 S.W. 184 (Austin, Tex . Civ.App., 1913, writ ref.), the attorney representing one of the parties was engaged in trying a case in another court at the time this case came up for trial. This attorney was a member of a law firm. The trial court overruled the motion for continuance based on the fact that this lawyer was in trial in another court. On appeal the court held that no abuse of discretion was shown where no reason was shown why another member of that lawyer's law firm could not have taken over and ably represented the client.

For other cases that have led us to the conclusion that we have reached on this point, see 112 A.L.R. 593.

We are not required to and do not pass on the question of how each member of this Court would have ruled had he been required to make the initial ruling on the motion for continuance.

We hold that the record before us does not show that the trial court abused the discretion vested in him when he overruled Frymire's motion for a continuance.

In appellant's points of error numbered 7 through 16, inclusive, it contends that the trial court erred in various respects in rulings that it made relating solely to the issue of defendant's liability in the...

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