Georgia Casualty Co. v. Campbell

• Court: Texas Court of Appeals
• Writing for the Court: Randolph
• Citation: Georgia Casualty Co. v. Campbell, 266 S.W. 854 (Tex. App. 1924)
• Decision Date: 29 October 1924
• Docket Number: (No. 2356.)<SMALL><SUP>*</SUP></SMALL&gt
• Petition History: writ dism'd
• Parties: GEORGIA CASUALTY CO. v. CAMPBELL et al.

Page 854

266 S.W. 854

GEORGIA CASUALTY CO. v. CAMPBELL et al.

(No. 2356.)^*

Court of Civil Appeals of Texas. Amarillo.

October 29, 1924.

Rehearing Denied December 10, 1924.

Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.

Suit by the Georgia Casualty Company against Ollie Campbell and others, to set aside a decision of the Industrial Accident Board awarding compensation. Judgment for defendants, and plaintiff appeals. Affirmed.

Lindley H. Betts, of Dallas, H. T. Cooper, of Fort Worth, and R. T. Correll, of Perryton, for appellant.

King & York, of Austin, E. O. Thompson, of Amarillo, and Allen & Allen, of Perryton, for appellees.

RANDOLPH, J.

This suit was filed in the district court of Ochiltree county by the Georgia Casualty Company, against Ollie Campbell, Mrs. Emma Michael, and King & York, attorneys at law, to set aside an award made to such parties by the Industrial Accident Board of Texas. From an adverse judgment, the Casualty Company has appealed to this court.

Ollie Campbell and Mrs. Michael filed with the Industrial Accident Board their claim against the Casualty Company for compensation under the Texas Workmen's Compensation Law (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), as beneficiaries under said law, on account of the death of James H. Campbell, in Ochiltree county. James A. King and E. R. York, as attorneys, represented claimants in the prosecution of said claim before the Accident Board; the board entered its final ruling awarding compensation to claimants, and within 20 days the company gave notice that it would not abide by said final ruling, and, in accordance with said notice, brings this suit to set aside the decision of the board. The defendants Ollie Campbell and Mrs. Michael were surviving sisters of deceased James H. Campbell, and filed such claim as dependents.

Appellant's first proposition alleges error by the trial court in overruling its motion for continuance. Defendants' first amended original answer praying, for the first time, for a lump sum settlement, was filed October 13, 1923, the day of the trial in the district court. But plaintiff, however, admitted having received a copy of this pleading on November 4th, 9 days before the filing of said amended pleading in the district court, and 9 days before the case was called for trial in said district court. The ground and motion for continuance was based on surprise, in that the plaintiff did not have the necessary time to investigate the question, and meet the new issue thus injected into the case. On the 15th day of November, during the trial of the case, defendants obtained leave to file their trial amendment, in which they allege for the first time "that the said James H. Campbell at the time of his death, was an unmarried man, having never been married, and left surviving him no wife, child or children, or father or mother," and plaintiff then renewed its motion for continuance for the purpose of securing an opportunity of investigation into the facts of the new issue thus presented.

Plaintiff alleges in such motion, as to the pleading for a lump sum settlement:

"That this new issue comes now as a surprise to this plaintiff, because it has not now and has not had an opportunity to produce testimony to meet same, and said pleadings filed and a new issue raised after depositions were taken in the case of witnesses by whom the plaintiff might have adduced testimony tending to prove the allegations of said answer alleging their right to recover compensation in a lump sum; that the first notice that plaintiff had that said amended answer setting up claim for compensation in a lump sum would be filed, was on or about November 4, 1923, being only 8 days before this case was called, and after depositions of all the witnesses in the case had been taken, and after the plaintiff had lost its opportunity to examine said witnesses upon the issues thus newly raised; that if this case should be continued, the plaintiff believes and has reason to believe that at the next term of court, it would be able to produce testimony of credible witnesses showing that the defendants are not entitled to compensation in a lump sum; that the plaintiff is now unable to procure this testimony by reason of the shortness of time, and all of the witnesses by whom proof could be made reside outside of the county of Ochiltree, and are not subject to subpœnas issued out of this court, and that their testimony can be procured only by depositions; that the filing of said amended answer and cross-action, setting up claim for compensation in a lump sum was not anticipated by plaintiff, and the same comes now as a complete surprise to plaintiff, and at a time when it could not, by the use of any diligence whatsoever, produce testimony, or in any manner meet said issue."

This is substantially repeated in the objections to the filing of the trial amendment and second motion for continuance.

Such motions for continuance as here made are addressed to the trial court's discretion and are not to be granted as a matter of law. In these applications it is admitted that the plaintiff's attorney had 9 days' notice of the fact that defendants were going to file the pleading which was furnished them. It does not allege in said motions that plaintiff had made any effort at an investigation, or had made any preparations for an investigation into the facts upon which to base its defense against defendants' claim for a lump sum settlement. The name of no witness is given by which it expects to prove any fact or facts.

We do not understand that a party to a suit, when he has notice that a pleading is to be filed injecting a new issue in a case, can pass his judgment upon the necessity of his taking steps to such investigation as is necessary to meet the new issue thus presented, and that by deciding in his own mind that he has not sufficient time to make such defense, obviate the necessity of taking some step to indicate his good faith and belief in the probable existence of such defensive testimony. This is a question for the trial court to pass on. It certainly devolves on such party to exercise some degree of diligence in making some effort to secure the testimony he hopes to secure, and not to wait until the case is called, and then ask the trial court to grant him until another term to take such steps.

The filing of the trial amendment did not necessarily entitle plaintiff to a continuance. The evidence introduced in the case does not lead us to a conclusion, or even to an inference, that a continuance would have enabled the plaintiff to obtain any evidence to establish the fact that the deceased was a married man. A continuance will not be granted on the mere possibility that the plaintiff might have obtained such evidence, there ought to be at least a probability of its being able so to do. I. & G. N. Ry. Co. v. Howell, 101 Tex. 605, 111 S. W. 142; Osage Oil & Refining Co. v. Lee Farm Oil Co. (Tex. Civ. App.) 230 S. W. 520; Western Union Telegraph Co. v. Robertson, 63 Tex. Civ. App. 239, 133 S. W. 455.

Appellant's second proposition is as follows:

"The claimant for compensation under the provisions of the Workmen's Compensation Law, 5246 — 1 to 5246 — 91, Vernon's S. Ann. S., 1918 Supplement, has the burden of showing that he is entitled to compensation under the terms of said law, and where the compensation claimed is for the death of an employé, such claimant has the burden of showing that he is entitled thereto to the exclusion of other claims named in article 5246 — 15 of said law."

Under this proposition appellant contends, first, under its plea in abatement, that the proper parties to this cause were not before the trial court, to wit, W. T. Campbell, R. M. Campbell, George L. Campbell, Lloyd Campbell, and Mrs. Ben Callum, brothers and sister of deceased. As stated, this question was raised by plea in abatement, which plea was overruled by the trial court.

We recognize the rule to be as stated by appellant, and that all parties at interest may be proper parties, and, where it is shown that there are parties who appear to have a joint interest with parties bringing a suit who are not parties plaintiff or defendant, then there is a nonjoinder of necessary parties. But in this case, it does not appear that there are any parties at interest who are not parties to the controversy now before us. The parties named in the plea in abatement were parties to the proceeding before the Industrial Accident Board, claiming compensation jointly with defendants here. It appears from a certified copy of the order of the board filed in the trial court, and brought up in the record, that the brothers and sisters of the deceased, including parties named in the plea in abatement, and the defendants Ollie Campbell and Mrs. Michael, asserted their claim for compensation before the Industrial Accident Board; that upon the hearing the board awarded compensation to Miss Campbell and Mrs. Michael, as dependents, but expressly found that the brothers and other sister were not...