Knowles v. Blue

• Decision Date: 18 January 1923
• Docket Number: 3 Div. 598.
• Citation: 209 Ala. 27,95 So. 481
• Parties: KNOWLES v. BLUE ET AL.
• Court: Alabama Supreme Court

95 So. 481

209 Ala. 27

KNOWLES v. BLUE ET AL.

3 Div. 598.

Supreme Court of Alabama

January 18, 1923

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for damages for malpractice by H. A. Knowles against John H Blue, F. B. Boswell, and Virgil Dark. Judgment for defendants, and plaintiff appeals. Affirmed.

Ball &amp Beckwith, of Montgomery, for appellant.

Steiner Crum & Weil, Hill, Hill, Whiting & Thomas, and Rushton & Crenshaw, all of Montgomery, for appellees.

THOMAS J.

The suit for damages was filed March 13, demurrer to the complaint of date of March 25, and the verdict and judgment for defendants rendered and entered on April 20, 1922. The law of such a case is well defined by this court. Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 91 So. 493; Barfield v. South Highlands Infir., 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; Hamrick v. Shipp, 169 Ala. 191, 52 So. 932; Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; McDonald, Exec. v. Harris, 131 Ala. 359, 31 So. 548.

Several assignments of error are based on the refusal to grant plaintiff a continuance for the term. There was no specific motion to pass the case to a later date of that term.

It is well recognized such motions are addressed to the sound judicial discretion of the trial court, and that appellate courts will not reverse action thereon unless it is obvious and palpable that there was an abuse of judicial discretion in granting or refusing such motion. Lutz v. Van Heynigen Brokerage Co., 202 Ala. 234, 80 So. 72; Berthold, etc., v. Geo. W. Phalin Lumber Co., 196 Ala. 362, 71 So. 989; Birmingham Paint, etc., Co., v. Gillespie, 163 Ala. 408, 50 So. 1032; Kelly v. State, 160 Ala. 48, 49 So. 535; Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 25 So. 44; Denson v. Stanley, 17 Ala. App. 198, 84 So. 770. The same rule obtains as to the action of the trial court on a motion for postponement of the trial to a later date in the term. A. G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65; Walker v. State, 91 Ala. 76, 9 So. 87; DeArman v. State, 77 Ala. 10.

A ground for continuance contained in the motion is that the trial court may not call the instant case for trial as set by the clerk, in advance of other cases previously filed and set for trial, and that, if so called and tried, it would result, as to plaintiff, in a violation of his rights under circuit court rules 1 and 15. The trial docket was offered in evidence to support the motion. The bill of exceptions recites:

"It was admitted that there were many cases on the docket untried and uncalled and not disposed of which had been filed and docketed prior to said cause [the instant case], but the court overruled said objection and exception [to going to trial in advance of said other causes on the docket], and to said ruling the plaintiff then and there duly and legally excepted. The following testimony was introduced: H. A. Knowles, being duly sworn," etc.

The record fails to show such a violation of circuit court rule 15 as to which plaintiff can complain, or that as to him reversible error was committed. Womack v. Bookman, 34 Ala. 38; Shorter v. Hightower 48 Ala. 526; 38 Cyc. 1282, notes. Statutes prescribing the order of trial of causes on the docket have been said to be merely directory. The rule in question, as codified, has the force and effect of a statute, is directory, and vests a large discretion in the trial court in the disposition of the causes in such order as to economically and speedily dispose of pending causes without injustice to parties litigant and their counsel. Cherry v. Milam (Okl. Sup.) 168 P. 241.

We may observe of the phase of the motion that plaintiff had no sufficient time to prepare for his trial that the law of the case is well settled by this court. The minimum time allowed by statute, after service of process on a defendant, for preparation of the defense was presumptively sufficient. A. L. Clark Lbr. Co. v. Northcutt, 95 Ark. 291, 294, 129 S.W. 88. It was formerly 20 days. Code, § 5346. This statute was amended, giving 30 days after execution of process within which to appear and plead, answer, or demur. Gen. Acts 1915, p. 825 (1). For applications of the last statute see Robinson v. Newton Gro. Co., 200 Ala. 528, 76 So. 854; Street v. Browning, 205 Ala. 110, 87 So. 527; S. J. Petree & Co. v. Phillip Olim & Co., 206 Ala. 333, 89 So. 602; Carothers v. Callahan, 207 Ala. 611, 93 So. 569. If 30 days is presumably a sufficient time for a defendant to prepare his side of the case for trial, the same would apply with added force to a plaintiff, who is given by statute 12 months after injury and damage to prepare and file suit. It must be noted, however, that there is no iron-bound rule governing such matter, and that the court may exercise a sound discretion as to both parties, dependent on their peculiar or attending circumstances. Denson v. Stanley supra; Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 438, 25 So. 44. There was no obvious and palpable abuse of judicial discretion in holding that plaintiff should have been prepared to proceed with his trial on the day set for the trial, which was more than 45 days after suit was brought, and after being twice notified by counsel that trial would be insisted upon on April 19, 1922.

A ground of plaintiff's motion for a continuance for the term (not for a postponement to a later date thereof) was the absence of two material witnesses, Drs. Kirklin and Lewis. Respective counsel admit that Dr. Lewis appeared and testified when called at the trial, and in behalf of and "in the cause of plaintiff." Plaintiff suffered no injury by failure of the presence of Dr. Lewis when the motion for a continuance was presented, argued, and ruled on by the court. There is immaterial discrepancy between counsel as to the exact time Dr. Lewis appeared at court; it is sufficient that he was present and testified when called as a witness by plaintiff. What of the showing for a continuance because of the absence of Dr. Kirklin? On the hearing of the motion, plaintiff rested on the averments of fact set out therein, and on the exhibits thereto. Defendants, in answer thereto, showed that shortly after the suit was filed the clerk set the case for trial (for April 19, 1922), notified the respective counsel, and that defendants' attorneys informed plaintiff's attorneys of record that defendants would be ready for and insist upon a trial on the date indicated, and that again, on March 31st, defendants' attorneys, or some of them, wrote plaintiff's attorneys confirming their conversation with one of the attorneys for plaintiff, stating that defendants "wish this case tried at this term of the court, and we will *** be ready for trial" on the day set for the trial (April 19, 1922); that "no reply was received from said letter." It is further recited in the bill of exceptions on this point:

"That about a week before the trial one of the plaintiff's attorneys came to the office of one of the defendants' attorneys to ascertain if there was any prospect of getting the case continued, and that defendants' attorney told him that the defendants would not agree to a continuance, but, on the contrary, would insist upon the trial when the case was set. Evidence was further introduced that at least one of the defendants' main witnesses, a surgeon practicing in the city of Montgomery, had made plans to attend lectures elsewhere, but had postponed the same in order to be present at this trial and testify, and his plans were so laid as that he expected to leave within a few days after the case was set for trial"; that the motion was overruled, the case passed to April 20th to "enable plaintiff to notify and procure his witnesses to be present. To the action of the court in overruling the motion *** plaintiff then and there duly and legally excepted."

Such are the recitals of the bill of exceptions. The next day (April 20, 1922) plaintiff moved on the court to "grant a continuance" on grounds stated in first motion, and on grounds more specifically indicated as to the absent witnesses. The materiality of the testimony and causes for the absence of Dr. Kirklin are averred; that he resided more than 100 miles from the place of the trial; had promised and agreed with plaintiff, "if it was possible, he would attend the trial of such cause and testify for him; *** that on April 15th he (plaintiff) had clerk of this court issue subp na" for said doctor; and that "on the morning of April 19 he received a telegram from" witness, saying it was "impossible *** to come because of illness." It is further averred:

That on April 19, 1922, the witness Dr. Kirklin had made affidavit admitting the agreement between him and plaintiff to the effect that the former would be present at the trial to testify; that it was "impossible for affiant to *** attend court in Montgomery as a witness *** for the reason that affiant has illness in his own family which requires his presence and attention, and for the additional *** reason that affiant has under his care a patient who is suffering from pneumonia, and who is now in the crisis of the disease, and who *** demands the constant care and treatment of affiant;" and "another patient on whom he (affiant) performed a surgical operation last Sunday, and who requires his care and attention," and patients whom affiant "feels that he cannot afford to neglect or slight in accordance with his duties as a physician; that, but for the reasons hereinabove set out, affiant would and could attend said Montgomery court as a witness in said cause"; that he "is not

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