Sabelli v. Security Ins. Co. of New Haven

• Decision Date: 30 October 1963
• Docket Number: No. 11121,11121
• Citation: 372 S.W.2d 348
• Parties: Dominic H. SABELLI, Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellee.
• Court: Texas Court of Appeals

Page 348

372 S.W.2d 348

Dominic H. SABELLI, Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellee.

No. 11121.

Court of Civil Appeals of Texas, Austin.

Oct. 30, 1963.

Rehearing Denied Nov. 20, 1963.

Reid & Taylor, San Antonio, for appellant.

Brown, Sparks & Erwin, Austin, for appellee.

PHILLIPS, Justice.

This is a workmen's compensation case. After a hearing before the Industrial Accident Board, the claimant Sabelli (appellant in this court) was awarded two weeks total disability. He appealed this award to the District Court.

In his petition appellant alleged that he was injured during the course of his employment when a transport in which he was riding overturned 'injuring his head, neck, back, left leg, left elbow, right shoulder, and body generally, causing him to suffer incapacity to his body as a whole.' Appellant asked for 401 weeks of total permanent incapacity at thirty five dollars per week, which is the maximum amount allowed by the statute. Art. 8306, Sec. 10, Vernon's Ann.Civ.St.

The case was tried before a jury after which the Trial Court entered judgment based upon the jury verdict for 5 2/7 weeks total disability followed by 35 weeks of partial disability. Appellant, plaintiff in the Trial Court, has duly perfected his appeal from that judgment.

We affirm the judgment of the Trial Court.

Appellant's first two points, briefed together, assign error to the refusal of the Trial Court to grant appellant's first motion for continuance and in refusing to allow appellant to withdraw his announcement of ready. Appellant alleges that his reason for these motions was that an indispensable medical witness would not appear.

Appellant's original petition was filed in the Trial Court in March of 1962. The case was called for trial several times before it was actually tried but was continued for various reasons not pertinent here.

The medical witness, whose testimony appellant alleges is indispensable, is a Dr. Brunner. Dr. Brunner had examined and treated appellant at the time of his injuries in December of 1961. After this, Dr. Brunner continued to treat the appellant on various occasions.

On January 7, 1963, the case was set for trial on February 4, 1963 on appellant's motion.

On February 1, 1963 the Trial Court notified appellant that in all probability his case would go to trial on February 4, 1963. Appellant contends that he immediately informed Dr. Brunner of the trial and the doctor stated that he would be available as a witness however he would like to examine the appellant once more before trial. Appellant lives in San Antonio and the trial was to be in Georgetown some 110 miles away. On Monday morning, February 4, appellant's case was called to trial and appellant's attorney announced ready. On this same day appellant was examined by Dr. Brunner in San Antonio.

After appellant's attorney announced ready, the trial began, a jury was selected and it was not until the following morning that appellant learned that Dr. Brunner would not appear as a witness.

Appellant stated to the court that the testimony of Dr. Brunner was material and handed the court a written statement by Dr. Brunner describing his findings upon an examination of appellant on the previous day. The Trial Court examined the statement, then denied motions made by appellant that his case be continued or that he be allowed to withdraw his announcement of ready. The trial then proceeded without the testimony in question.

Appellant alleges that he was completely taken by surprise in the failure of Dr. Brunner to appear, that the doctor had given him every reason to believe that he would appear and that the location of the trial was of such distance that it would have been impossible for the appellant to have compelled that doctor's attendance through a subpoena. Appellant alleges that his belief that the doctor would be available as a witness was the reason that the doctor's deposition was not taken.

Appellant further alleges that the testimony that the doctor would have given was material relative to disputed issues.

In August of 1962, the defendant, by written interrogatories, took the depositions of Drs. Price and Cochran of San Antonio, Texas and the appellant filed cross interrogatories. These depositions were used in the trial of the case.

There is no contention here that appellant has not complied with Rule 252, T.R.C.P., in seeking his continuance.

Rule 251, T.R.C.P., directs that a continuance shall not be granted except for sufficient cause.

In Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, the Supreme Court in a fact situation substantially similar to the one before us stated that the absence of a material witness under Rule 251 is 'sufficient cause' but only if proper diligence has been used to procure the testimony of the witness. The court stated:

'There is nothing in the rules on continuance requiring the granting of a first motion merely because it is in statutory form and is not controverted by affidavit of the opposite party. Surely it will not be gainsaid that a trial court, in determining the existence of diligence, may examine the allegations of diligence contained in the motion in the light of the record before it. Moreover, a trial court will not be required to grant a motion for continuance, at the risk of committing error in overruling it, when the allegations in the motion examined in the light of the record show beyond cavil a complete lack of diligence as measured by other rules regulating procedure in the trial of cases.'

and further:

'* * * Rules 186 et seq. authorizing the taking of depositions, if utilized, offer parties to civil suits ready and fairly certain means of procuring the testimony of resident witnesses. More than that, if resorted to with promptitude and pursued with diligence, they offer parties absolute protection against being forced to trial by arbitrary and unreasonable action of a trial court without the benefit of the testimony of material witnesses. If parties choose to forego their rights under these rules and resort to other and less effective and less certain means of procuring the testimony of material witnesses they must be held to do so at their own risk and with foreknowledge that they may be put to trial without the benefit of the testimony.' (citing cases)

Appellant contends that the Fritsch case does not apply because he was powerless to subpoena Dr. Brunner in that the doctor resided outside the limits of a subpoena. We cannot agree. There was ample time to take Dr. Brunner's deposition and that by the very nature of his profession the fact that he would be unable to attend trial was more probable than possible. In Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, the Supreme Court affirmed the Trial Court in overruling petitioner's motion for a continuance and stated that where petitioner had no right to rely on a subpoena, he had not shown due diligence where he had failed to take the witnesses' depositions.

The question of whether a continuance is to be granted is largely within the discretion of the trial judge in the light of the facts before him. In view of the record before us and the holding in the Fritsch case and the Cole case, both cited above, we overrule appellant's contentions with respect to these points.

Appellant's points three and four assign error of the court in permitting questions by defense counsel, and allowing argument pertinent thereto, regarding a claim appellant had previously made with the Federal Government, on the grounds that the questions and arguments were highly prejudicial and inflammatory to plaintiff's rights and had no bearing whatsoever on whether the plaintiff was suffering any...