Pacific Express Co. v. Lasker Real-Estate Ass'n.

• Decision Date: 15 May 1891
• Parties: PACIFIC EXPRESS CO. v. LASKER REAL-ESTATE ASS'N.
• Court: Texas Supreme Court

16 S.W. 792

PACIFIC EXPRESS CO. v. LASKER REAL-ESTATE ASS'N.

Supreme Court of Texas.

May 15, 1891.

Appeal from district court, Mitchell county; WILLIAM KENNEDY, Judge.

McCormick & Spence and Walton, Hill & Walton, for appellant.

STAYTON, C. J.

This action was brought to recover damages claimed to have resulted from the partial destruction of a house owned by appellee, which it is claimed resulted from the negligence of a servant of appellant while engaged in the conduct of its business. After the action was brought, it appears that the cause was removed to a circuit court of the United States, by which it was remanded to the state court, and, when called in the latter court for trial during the early part of the term at which it was tried, it appears that the evidence that the cause had been remanded was not deemed by the plaintiff sufficient, and for this reason it then declined to announce for trial, although the defendant was then ready for trial, and ready to admit, or admitting, that the cause had been remanded. Under this state of facts, the court declined to compel plaintiff to announce, and passed the cause to the heel of the docket. The cause had been placed on the docket in the position it occupied before removal to the federal court, and was a jury case, and when all jury cases on the jury docket, at the time this was passed to the heel of the docket, had been disposed of, this cause was again called for trial, although there were other causes on the jury docket untried or disposed of which had been placed there after the cause was first called. Plaintiff announced ready for trial, and appellant asked that the cause be continued or postponed until some later day of the term, on account of the absence of witnesses and of one of his counsel, but this counsel was present on the trial. The application for continuance was the third, and was clearly insufficient, in that it did not state that the application was not made for delay. The application stated what was expected to be proved by the absent witnesses, and from this statement it appears that defendant expected to prove that the keepers of a livery stable were careless in keeping a lamp against which a servant of appellant drove its express wagon, and thus caused the conflagration; but this evidence would only have tended to show that the negligence of the stable keepers, as well as the negligence of appellant's driver, caused the fire, and this would not have furnished any defense to the action.

While the facts might have authorized the court, in the exercise of discretion, to have postponed the case to a later day of the term, we are of opinion, in view of the evidence on account of which this was asked, that the refusal of the court to postpone the case did not operate to the injury of appellant. After the application to postpone or continue the case was overruled, a jury was waived, and the cause was tried. The house was not entirely destroyed, and, over defendant's objections, the court permitted a witness to state what sum, in his opinion, it would have been necessary to expend in order to place the house...