Page v. American Family Mut. Ins. Co.

• Decision Date: 03 June 1969
• Docket Number: No. 155,155
• Citation: 42 Wis.2d 671,168 N.W.2d 65
• Parties: John W. PAGE, Respondent, v. AMERICAN FAMILY MUTUAL INS. CO., a domestic corp., Appellant.
• Court: Wisconsin Supreme Court

Page 65

168 N.W.2d 65

42 Wis.2d 671

John W. PAGE, Respondent, v. AMERICAN FAMILY MUTUAL INS. CO., a domestic corp., Appellant.

No. 155.

Supreme Court of Wisconsin.

June 3, 1969.

This is an appeal from a judgment of the circuit court for Racine county following a jury verdict which awarded the plaintiff damages for personal injuries sustained in an automobile accident. The accident occurred on December 23, 1964, when the plaintiff, John W. Page, parked his automobile alongside a police car for the purpose of asking directions. While he was so stopped, his automobile was struck from the rear by one driven by James C. Talsma, who was insured by the American Family Mutual Insurance Company, defendant and the appellant herein.

An action was commenced by Page against American Family Mutual Insurance Company on June 29, 1966. On November 16, 1967, a pretrial conference was held before The Honorable Howard J. DuRocher, Judge of Racine county. A pretrial order set the trial date for January 29, 1968. Judge DuRocher's illness, however, required the substitution of Judge Zastrow, who set the date for trial for March 11, 1968. At oral argument before this court, counsel for defendant insurance company acknowledged that he was aware of this trial date at least five and one-half weeks prior to March 11. He arranged for a medical examination of the plaintiff by Dr. C. W. Christensen on February 1, 1968. It appears to be undisputed that, on February 20, defendant's counsel called the doctor's office and left a message informing the doctor that the trial was scheduled for March 11 and that he would like to have a copy of Dr. Christensen's medical report as soon as possible. That medical report was prepared for counsel on March 6, and on that date Dr. Christensen infomed counsel that he would be leaving for Florida the next morning, March 7, at 5:30 a.m. Although defendant's counsel was in Milwaukee, only twenty-five miles away from the residence of the medical witness, no attempt was made either to serve a subpoena or take a deposition. When counsel learned that the witness would not be able to appear, he telephoned the trial judge and stated that he would be unable to produce the medical witness he had relied on. The judge at that time pointed out that the case had been set for trial for a considerable period of time and that he had denied an earlier motion for a continuance when the defendant stated that a witness who would have been able to testify about the plaintiff's contributory negligence would be unable to appear. Judge Zastrow told defendant's counsel that since the parties knew the case was going to trial, the burden was upon the attorney and the defendant to secure the testimony either through a subpoena or a disposition. Immediately before trial, on March 11, defendant moved for a continuance because of the absent witness. There is nothing of record to show that the plaintiff, who was ready for trial, had been informed that such motion would be made. The motion for a continuance was denied. It was subsequently renewed during the course of trial on the grounds that Dr. Christiansen was expected to return on March 15, and a request was made that the trial be continued until that date. This motion was also denied. After three days of trial, the jury returned a verdict apportioning negligence of 80 percent to defendant's insured and 20 percent to the plaintiff. An award was made in the sum of $7,000. On motions after verdict the defendant asked that the court set aside the verdict and grant a new trial on the issue of damages only, on the grounds that the court erred in failing to grant the defendant's motions for a continuance of the case and for a mistrial upon the failure of the court to grant a continuance because of the absence of the defendant's medical witness. It also moved that the damage verdict be set aside as excessive. These motions were denied, and judgment was entered on the verdict. Other matters were alleged as a basis for a new trial but only the two mentioned above have been pursued on this appeal.

Giffin, Simarski, Goodrich & Brennan, Milwaukee, for appellant; James P. Brennan, Milwaukee, of counsel.

Axel, Aaron & Goldman, Milwaukee, for respondent; Alan M. Clack, Milwaukee, of counsel.

HEFFERNAN, Justice.

Sec. 270.145, Stats., contains the statutory provisions pertaining to the granting of continuances. That statute provides in part:

'270.145 Continuances. (1) Motions for continuances (except from day to day or to some day during the term) shall be made on the first day of the term unless the cause alleged therefor occur or be discovered thereafter. No cause noticed for trial shall be continued without the consent of the parties or cause shown.

'(2) An affidavit for a continuance shall state that the moving party has a valid cause of action or a defense, in whole or in part, and if in part it shall specify what part; that the case has been fully and fairly stated to his counsel, giving the name and place of residence of such counsel, and that upon the statement thus made he is advised by his counsel that he has a cause of action or defense to the cause in whole or in part; and that he has used due diligence to prepare for trial, and the nature and kind of diligence used. If the application is based on the absence of a witness or document the affidavit shall state the name of the absent witness and his residence, if known, or the nature of any document wanted, and where the same can be found; that no other evidence is at hand or witness is in attendance or known to him whose testimony could have been procured in time, that the party can safely rely upon to prove the facts which he expects and believes can be proved by such absent witness or document; that the party is advised by his counsel, and believes, that he cannot safely go to trial without such evidence, that such witness is not absent by his consent, connivance or procurement, and the endeavors that have been used for the purpose of procuring such evidence; and particularly the facts which the absent document or witness is expected to prove, with the ground of such expectation.

'(3) If the adverse party admits in writing or in open court that the witness, if present, would testify as stated in the affidavit for continuance, the application for a continuance may be denied, and the statement of facts aforesaid may be read as evidence, but the adverse party may controvert such statements, and such statements shall be subject to objection the same as a deposition.'

In applying this statute we have concluded that this court may properly review the decision of a trial judge on a motion for continuance. Town of Ripon v. Diedrich (1967) 34 Wis.2d 459, 149 N.W.2d 580. To grant or not grant a continuance is a matter within the discretion of the trial judge. The trial judge's decision in that respect will be set aside only if there is evidence of an abuse of discretion. Estate of Hatten (1940), 233 Wis. 256, 289 N.W. 630; Tendrup v. State (1927), 193 Wis. 482, 214 N.W. 356; Druska v. Western Wisconsin Telephone Co. (1922), 177 Wis. 621, 189 N.W. 152.

On motions after verdict and in denying the motion for a continuance, Judge Zastrow pointed out that counsel for the defendant knew the date that this case was going to trial as early as January 24, 1968, and counsel was so advised by the clerk of court. Judge Zastrow stated:

'It seems to the court that here again counsel for the defendant knew that he was going to trial back in January. Independent medical examination certainly should have been conducted shortly thereafter and it would seem that counsel for the defendant has the obligation to keep in close contact with any doctor that he wishes to use at the time of trial. To grant this motion at the present time certainly would not only disrupt proceedings of this court but certainly would in the court's opinion be prejudicial to the rights of the plaintiff.'

The facts also indicate that Judge Zastrow had been assigned to the circuit court for Racine county on a temporary basis and, had the case been adjourned, the plaintiff would have been denied his trial at the time he was ready and for which he had secured his witnesses. Judge Zastrow pointed out that he would not be able to resume the handling of the case for at least three weeks and stated that this would work an undue hardship upon the plaintiff. He said that in his judgment the problem arose from lack of diligence on the part of defendant's counsel. The record also indicates that the defendant had earlier sought the continuance for another reason unrelated to the matter urged herein and at that time the defendant was informed of the...