Hammack v. White, 33578
| Decision Date | 23 February 1971 |
| Docket Number | No. 33578,33578 |
| Citation | 464 S.W.2d 520 |
| Parties | Gertrude HAMMACK, Plaintiff-Respondent, v. Roy WHITE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Kenneth S. Teasdale, St. Louis, for appellant.
James F. Koester, St. Louis, for respondent.
WEIER, Commissioner.
Plaintiff, Gertrude Hammack, sought and obtained a verdict and judgment in the sum of $10,000.00 against the defendant, Roy White, for personal injuries which plaintiff sustained as the result of an automobile collision. Defendant has appealed.
Defendant first raises the point that the trial court erred in overruling his oral motion for a continuance because plaintiff's counsel failed to send defendant's counsel a copy of answers to defendant's supplementary interrogatories which revealed that two additional doctors had waited upon and examined plaintiff; that defendant thereby suffered prejudicial surprise by failure to receive this information. In order to understand this contention, we examine the facts disclosed by the record.
We first note that the transcript fails to set out the supplementary interrogatories or the answers. Neither does it show their dates of filing nor their certification of service. Normally, on review, we are bound by the record. We may not notice or accept a statement of a fact asserted in a brief which is not supported by the transcript. Avalon Development Company, Inc. v. American Italian Construction and Development Company, Inc., Mo.App., 437 S.W.2d 702, 703(1). Neither can we determine what was filed or done in the trial court on the basis oif such a statement. Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W.2d 876, 879(9). On the other hand, if adversary counsel concedes in his brief that which has been omitted, then we may consider it as though it were set out in the record. Nastasio v. Cinnamon, Mo., 295 S.W.2d 117, 119(1). In the case before us, plaintiff has conceded in her brief that the answers were filed on February 19, 1969. We will therefore accept as a fact that the answers to the supplementary interrogatories were filed on the date agreed to by both attorneys.
Other facts pertinent to the issue appear in a statement made to the court by counsel for defendant in support of his oral motion for continuance. On Monday, April 14, 1969, after the case was assigned for trial, defendant's counsel, upon examining the file, found answers had been filed february 19, 1969, setting out the names of the two doctors. Counsel informed the court that April 14, 1969, was the first time he had received notice of the answers. It appeared, however, that on March 24, 1969, he had filed a motion to dismiss plaintiff's cause of action for failure to answer the supplementary interrogatories and had given plaintiff's attorney notice that this motion would be heard on April 2, 1969. On or before this last date defendant's counsel related to the court that in a telephone call he had been informed by opposing counsel that he thought the answers had been filed and a copy would be mailed. The motion on the docket was passed, but a copy of the answers was never mailed. To this plaintiff's counsel replied that he could not recall the conversation and could neither affirm nor deny it.
Defendant's attorney, claiming surprise, then advised the court that if he had known that plaintiff had engaged the services of the two doctors named, he would have been able to take their depositions and compel production of other medical records. The court, indicating that there could be no surprise since the answers had been in the court file since February 19, 1969, denied the request for a continuance.
We cannot charge the trial court with error on its ruling. Civil Rule 65.03, V.A.M.R., requires that an application for continuance, unless the adverse party consents that it be made orally, must be made in writing accompanied by an affidavit, setting forth the facts on which the application is founded. The application was here made orally, apparently without consent of opposing counsel. No request was made to supply the record with a written motion or to give counsel time to prepare one. The assignment to trial and the request for continuance were made in the afternoon, but the jury was not empanelled and trial did not commence until 10:25 the next morning. This would have allowed counsel time to prepare his written motion and affidavit. but even if this had been done, it is difficult to see that the court could be charged with an abuse of discretion in denying the continuance. By his own admission, counsel acknowledged that on or about April 2, 1969 (in a telephone conversation with opposing counsel) he had become acquainted with the fact that the answers had been filed. Even though the file apparently had not been checked before this conversation by defendant's counsel, he had time from at least April 2, 1969 to April 14, 1969 to have determined the content of the answers and made preparation. Defendant's counsel had further availed himself of the privilege of having plaintiff examined by a specialist in the medical field wherein plaintiff's last two doctors allegedly had much expertise. This specialist was not only eminently well qualified as to his training, but was also on the staff of numerous hospitals and a professor in his specialty at one of the medical schools in the St. Louis area. He was called and was used as a witness. Defendant's counsel had the benefit of his examination and consultation. Even if the request had been in proper form, we cannot convict the trial court of error for its denial of the request. The granting of a continuance is largely within the discretion of the trial court and every intendment is in favor of the court's ruling on appeal. Krieber v. Krieber, Mo.App., 420 S.W.2d 376, 379(3).
Defendant's second and last charge of error is directed to the action of the trial court in quashing a portion of a subpoena duces tecum. This subpoena was directed to one of plaintiff's doctors and commanded him...
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