Myers v. Trice

• Decision Date: 24 April 1890
• Citation: 86 Va. 835,11 S.E. 428
• Parties: Myers et al. v. Trice.
• Court: Virginia Supreme Court

11 S.E. 428

86 Va. 835

Myers et al.

v.Trice.

Supreme Court of Appeals of Virginia.

April 24, 1890.

Continuance—Absence op Witnesses—Absence op Counsel — Declarations of Third Persons.

1. In an action for personal injuries defendants, by mistake, subpoenaed W. P. B. instead of K. W. B., his brother, and did not discover their error until the evening before the trial, when it was too late to secure his attendance. R. W. B. was a material witness for defendants, and would testify that plaintiff received his injury at a different time and place, and in a different manner, from that alleged by him, and through his own fault. Held that, in the absence of bad faith on the part of defendants, their motion for a continuance should have been granted.

2. On the first day of the term counsel for defendants stated to the court that W., defendants' leading counsel, was absent on account of sickness, but that they would try the case in his absence should all their witnesses be present when the case was called. Held, that the court should have granted defendants' motion for a continuance by reason of the absence of W., this motion having been made after a refusal to continue on account of the absence of a witness.

3. It was error to allow a witness for plaintiff to testify that he heard one G. tell one H. that defendants wanted H. to testify in the case, and that they might give him some money for it; there being nothing to show that G. was defendants' agent, or that he did any business with them, except to occasionally charter a train from them.

A.K.Leake, for plaintiffs in error.

J. A. Cabell and J. J. A. Powell, for defendant in error.

Richardson, J. This was an action of trespass on the case, brought in the circuit court of Goochland county, in March, 1888, by F.E. Trice, plaintiff, against Lawrence Myers and Decatur Axtell, receivers of the Richmond & Alleghany Railroad Company, defendants, to recover damages from said defendants to the amount of $5,-000 for injuries alleged to have been received by the plaintiff while in the performance of his duties as a laborer in the employment of the defendants. The plaintiff's declaration contains two counts. The first count charges that on the 8th day of October, 1887, the defendants were engaged in removing the dam across James river at Maiden's Adventure, in the county aforesaid, and employed the plaintiff as a laborer on said work, and that the defendants caused the plaintiff to get into a boat, and negligently propelled the boat so near a sluice that it became unmanageable, and was dashed through the sluice with such violence that the plaintiff, without faulton his part, was thrown down and one of his arms hurt, whereby he suffered great pain and was injured for life. The second count is to the same effect, with the additional averment that the plaintiff was under the orders of one Thacker, the defendants' superintendent or boss of the work, who negligently caused a boat, in which the plaintiff was engaged about his work, to be propelled so near a sluice that it became unmanageable, and was carried violently through the sluice, against the rocks and logs therein, and the plaintiff thereby injured. This declaration was demurred to by the defendants, but the demurrer was overruled. When the case was called for trial, the defendants moved for a continuance on the ground of the absence of a material witness; but the court overruled the motion, and the defendants excepted. The defendants then renewed the motion for a continuance on the ground of the absence of their leading counsel, by reason of sickness; but the court overruled this motion, and the defendants again excepted. During the trial the various other exceptions were taken by the defendants to certain rulings of the court. The jury found a verdict for the plaintiff, and assessed his damages at $1,800; whereupon the defendants moved the court to set aside the verdict, and to grant them a new trial, upon the ground that the verdict was contrary to the law and the evidence; but the court overruled the motion, and gave judgment according to the finding of the jury, and the defendants again excepted, and in this bill of exceptions the court certified, not the facts, but all the evidence adduced at the trial; and the case is here upon a writ of error and supersedeas to said judgment. The questions for decision are presented in the defendants' several bills of exceptions.

1. By the first bill of exceptions it appears that on the calling of the cause for trial, and before the jury was sworn, the defendants, by their counsel, stated to the court that R. W. Brown was a material witness for them, and lived at Balcony Falls, in the county of Rockridge, but that in summoning their witness they had, by mistake, summoned W. P.Brown, a brother of their witness, and did not discover their error until the evening before the case was called, when it was too late to secure his attendance at the trial; that it appeared from the testimony of W. B. Holt at the last trial, and that it would appear by the testimony of said Holt, who was present in court, and whom they were ready to produce, that said Brown was a material witness for the defendants, and that as soon as they discovered their mistake they had used their best efforts to procure the attendance of the witness, but without success, and that for these reasons they moved that the cause be postponed or continued, to enable them to obtain the witness. But the court, being of opinion that the failure to summon the witness was the error of the defendants, and not the fault of any public officer, overruled the motion, and the defendants excepted. We are of opinion that, under the circumstances, the exception is well taken. Professor Minor says: " The continuance of a cause to another term of the court is a matter peculiarly within the discretion of the court below, and the United States courts hold it, as they hold all other matters of discretion, to be no ground upon which error can be imputed. * * *" In Virginia the ill exercise of the discretion may be a ground of error, but it is a well-established principle that the appellate court will only reverse a judgment for that cause-when the refusal of the continuance is plainly erroneous; and so in other cases of discretion, as in the second examination of witnesses, etc.; citing Brooks v. Wilcox, 11 Grat. 411; Hewitt's Case, 17 Grat. 627; Fant v. Miller, Id. 187; Wright v. Rambo, 21 Grat. 158; Harman v. Howe, 27 Grat. 076; see 4 Minor, Inst., pt. 1, p. 869. The principle thus deduced from the authorities referred to is unquestionably stated with accuracy by the learned author, but it does not quite reach the peculiar circumstances of the case in hand, which rests upon the ground of mistake. The principle applicable in the present case is correctly and clearly stated in 3 Amer. & Eng. Cyclop. Law, 817, where the authorities are collected, and where it is said: " When it appears in the progress of a trial that a cause, if required to proceed, will suffer from the honest mistake of the party or his counsel, a continuance should be granted. But the mistaken advice of counsel not to prepare.for trial is insufficient;" citing Earnest v. Napier, 15 Ga. 306; Bergen v. Riggs, 40 111.61; Kelsey v. Berry, Id.69. And the same principle was recognized by this court in Hook v. Nanny, 4 Hen. & M. 157, note. These authorities distinctly announce the proposition that a motion for a continuance is addressed to the sound discretion of the court, in view of all the circumstances of the case; and that an appellate court will review and reverse the action of an inferior court, if, in the exercise of its discretion, it has harshly or unjustly refused a continuance, and especially where there is nothing in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade a trial, and not to prepare for it.

In order to pass intelligently upon the merits of the motion for continuance, which was refused in the present case, it is necessary to notice briefly the character of the plaintiff's claim, and so much of the evidence pro and con as will illustrate the importance to the defendants of the continuance asked for. The plaintiff alleges in his declaration, and testifies at the trial, that the injuries received by him were the result of the carelessness and negligence of the defendants in propelling the boat in which he was at the time in the discharge of...