Gaspar v. Kassm

• Decision Date: 19 March 1974
• Docket Number: No. 73-1711.,73-1711.
• Parties: Ondrey E. GASPAR, a minor by Frank S. Gaspar et al. v. M. Rafik KASSM, Appellant, v. Dennis L. SMETZER, Third-Party-Defendant.
• Court: U.S. Court of Appeals — Third Circuit

493 F.2d 964 (1974)

Ondrey E. GASPAR, a minor by Frank S. Gaspar et al. v. M. Rafik KASSM, Appellant, v. Dennis L. SMETZER, Third-Party-Defendant.

No. 73-1711.

United States Court of Appeals, Third Circuit.

Submitted on briefs January 25, 1974.

Decided March 19, 1974.

L. Carter Anderson, Rawle & Henderson, Philadelphia, Pa., for appellant.

Alan D. Williams, Jr., Williams & Glantz, Doylestown, Pa., Harry A. Kitey, Allentown, Pa., and Richard I. Moore, Durben & Moore, Morrisville, Pa., for appellees.

Before BIGGS, GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

BIGGS, Circuit Judge.

This is a diversity action seeking damages for bodily injury resulting from an automobile accident occurring in Pennsylvania on the afternoon of May 29, 1967. The defendant Kassm was operating his automobile and collided with a motor vehicle operated by Smetzer, who had as his passenger, Ondrey E. Gaspar, who was seriously injured. The complaint alleges that Kassm was negligent and that the collision was the result of his negligence. Smetzer was brought upon the record as a third party defendant by Kassm. At the time of the accident Kassm was employed as a teacher of accounting at Lafayette College; at the time of the trial he was supposed to be functioning on the faculty of Rensselaer Polytechnic Institute, at Troy, New York. There was a substantial verdict in favor of the plaintiffs against Kassm and the jury exonerated Smetzer.¹

At some date not specified by the record but prior to Christmas 1972, the present cause of action appeared in the district court's "pool" preparatory to trial listing. Kassm was notified of the trial date. He, however, scheduled a holiday visit to Damascus, Syria, intending to return and take up his teaching at Rensselaer Institute on January 22, 1973. By a letter dated January 8, 1973 the court scheduled the case for trial on February 14, 1973. This allowed three weeks for preparation for trial after Kassm's scheduled return on January 22. Soon after January 22, counsel attempted to contact Kassm at his home in New York State and at Rensselaer Institute and was advised that Kassm had not returned on schedule due to illness. In fact the first word as to Kassm's illness was received by the Rensselaer Institute, which informed Kassm's counsel, and in some way counsel received the impression that at that time Kassm was suffering from a back injury and so wrote to Judge Newcomer requesting a postponement on February 2, 1973. Opposing counsel were informed also of the alleged unavailability of Kassm. On February 6, however, the trial judge stated by letter to Kassm's counsel, "The case will, of course, proceed as scheduled." On February 9, Kassm's counsel filed a formal motion for continuance. Supporting the motion was a telegram from Kassm's wife to the Rensselaer Polytechnic Institute stating that Kassm was seriously ill. A formal supplemental motion for continuance was filed on February 12. Annexed to this motion was a letter from Mrs. Kassm, dated February 4, confirming that Kassm was ill and that his return to normal activities would be delayed for three to six months. On February 13 the court denied these motions.

On February 14, 1973, the day set for trial, counsel renewed his motion for continuance and submitted a cable from Mrs. Kassm stating that Kassm "got nurves sic breakdown." The court in the absence of the jury called counsel to side bar and the following discussion took place.

"Mr. Anderson counsel for Kassm: If the Court please, on behalf of the defendant and third-party plaintiff, I have previously, on February 9, filed a motion for continuance and I supplemented that in writing to your Honor on the 10th.

"By way of a further supplement I will hand the Court at this time a copy of a telegram that I received and which I mentioned to your Honor by telephone. I would appreciate it if that could be incorporated as Exhibit E to my Motion for Continuance as evidence of the illness and disability of my client and his absence from the country.

"The Court: Very well. That will be done.

"Mr. Anderson: Do I understand that my motion is denied, your Honor?

"The Court: Yes, Mr. Anderson, your motion is denied and we have entered an order to that effect. Have you not received it as yet?

"Mr. Anderson: No, sir, I have not.

"The Court: Well, that was done yesterday or the day before and the motion was denied.

"Mr. Anderson: My motion as renewed at this time is also denied?

"The Court: Yes, your motion as renewed is further denied.

"Mr. Anderson: Thank you.

"The Court: Let me say, Mr. Anderson, in speaking to that motion and that ruling, the reason simply is that this case is an aged case and really has been on the dockets much too long as it is now. Your client was on long advance notice as to the date of trial of this case.

"Mr. Anderson: That is true, sir.

"The Court: And we only received notice of his inability to be present several days ago, as you well know, with a dearth of information bearing on the subject, which it seemed to the Court was not really appropriate for a matter of this consequence.

"In other words, if he couldn\'t be here for some legitimate reason it seemed to me he should have enough interest in the case that he would have given us at least some reason why he couldn\'t be here.

"Furthermore, his contacts in the States failed to furnish you or the Court with any reason. I am not in any sense criticizing counsel, but I am addressing this to the conduct of your client, and for this reason, plus the fact that the Court understands that there is a record from an arbitration or from a deposition, I believe, which was used in connection with an arbitration proceeding in Bucks County which sets forth the position of your client in this matter, and the Court therefore is of the impression that this case should proceed as scheduled.

"If it could not proceed today, incidentally, we are scheduled up throughout the balance of this spring into the summer and would not be able to hear this case until sometime after the summer.

"Is that correct, Mr. Reese?

"Mr. Reese: We couldn\'t hear it before June 26, your Honor.

"The Court: June 26.

"Mr. Reese: Twenty-seventh.

"Mr. Anderson: Just for the record, your Honor, may I state, as I have advised you by phone and counsel, that my client is in Damascus, Syria, which is his native country.

"He went there just before Christmas intending to return to this country on January 22nd and he knew of the scheduling of this case before he went, and I understand that he became ill while over there and I have confirmed that he has not returned to this country and is not returning to his employment, which he was supposed to resume on January 22nd at Rensselaer Polytechnic Institute, where he is on the faculty.

"I would also point out, as I have mentioned, that the deposition that you allude to was taken in another proceeding and it was a deposition taken by adverse counsel of Mr. Kassm. Therefore, presumably, he was only answering the questions that he was asked and he was not being questioned by his own attorney, and that attorney, by the way, was not me, it was personal counsel that he had there. His insurance company was not involved in that proceeding and had no knowledge of it.

"However, I understand your Honor\'s ruling and am prepared to proceed except for the absence of my client.

"The Court: Very well.

"Mr. Anderson: We do have a problem regarding the use of the deposition. Mr. Moore counsel for Smetzer has objected to its use, and maybe this is not the appropriate time to consider that question, but since it relates to the subject that we are discussing I would bring it to your attention at this point.

"The Court: Very well. I think that it is perhaps appropriate that we consider it at this point. Mr. Moore, what is your objection to the use of it?

"Mr. Moore: Yes, sir. If I might address myself to the problem, it seems that the questioning involved with Mr. Kassm at the time, of course, was done by no counsel present in this proceeding, in which he was a plaintiff in the Bucks County action. This gives the original defendant the opportunity of a voice, so to speak, of testifying when but for that he would not be able to testify today.

"I can understand Mr. Anderson\'s position requesting his continuance. I take no position one way or the other as if it made any difference, but with respect to the deposition testimony itself, your Honor, I have no opportunity, not having conducted the deposition, having no counsel present at that deposition, really to rely on any effective cross examination either at the time or certainly now. I am totally precluded from cross-examining this witness, and in effect we have testimony read to the jury without the ability not only to see the deponent but the ability of counsel to cross-examine him, and I would object strenuously, your Honor, to that deposition.

"The Court: Very well. I understand your objection. Under the circumstances, however, I will have to overrule the objection.

"I do think in fairness that the defendant should be permitted to inform the jury the reason why his client isn\'t here, consistent with the very limited information which counsel has furnished to the Court.

"Mr. Anderson: I will advise the jury, then, that I understand—that my client is out of the country, he is ill, and he is unable to be present in this courtroom.

"The Court: Very well.

"Mr. Anderson: Thank you, sir.

"Mr. Williams: Your Honor, I have no objection if Mr. Anderson will amend that to `It is my understanding that my client is out of the country and is ill and unable to attend.\'

"None of us has any proof at all of this illness, sir.

"Mr. Anderson: I submit that I have evidence and it is of record.

"The Court: Very well. In that event I believe it is appropriate for the Court to instruct the jury, and I will say that it is the Court\'s understanding. I think that may solve both problems.

"Mr. Anderson: Thank you.

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