Sandstrum v. Magruder
| Decision Date | 25 April 1974 |
| Docket Number | No. 16252,16252 |
| Citation | 510 S.W.2d 388 |
| Court | Texas Court of Appeals |
| Parties | Eugene SANDSTRUM et ux., Appellants, v. Charles H. MAGRUDER et al., Appellees. (1st Dist.) |
David J. Nagle, Neal Y. Pickett, Houston, for appellants.
McLeod, Alexander, Powel & Apffel, James L. Anthony, Galveston, for appellees.
On Motion for Rehearing
On motion for rehearing we have determined that the cause must be reversed and remanded and we accordingly withdraw our original opinion dated February 21, 1974 affirming the trial court's action and substitute this opinion.
This is an appeal from an order of the District Court of Galveston County, 10th Judicial District, denying appellants' motion to reinstate their case after it had been dismissed for want of prosecution.
In appellants' original petition filed on May 13, 1970, they sought damages arising out of an automobile accident allegedly caused by the negligence of Deborah Magruder in driving her car on the wrong side of the road and asserted liability on behalf of her father, Chester Magruder, on the basis of negligent entrustment. Appellees filed general denial and special exceptions asserting that appellants' allegations of negligent entrustment constituted a conclusion of law unsupported by factual allegations; that appellants' allegations of 'other acts of negligence' were likewise vague, as also were the allegations with reference to appellants' injuries and damages 'in excess of $1,000.00.'
In March of 1973 appellants requested a trial setting on the general docket for Monday, June 18, 1973. On May 25, 1973 a pre-trial docket call was held in Galveston and at that time the trial court sustained the appellees' special exceptions and set the case for trial for June 11, 1973. The court's order did not specify a date certain for filing of an amended pleading to meet such special exceptions.
On the morning of June 11, 1973 the case was called for trial in Galveston and when appellants failed to appear the trial court entered its order dismissing the case for want of prosecution. On June 20, 1973, appellants filed their verified motion for reinstatement of the cause which alleged that the cause had been dismissed for want of prosecution at approximately 11:30 a.m. on June 11, 1973; that appellants' counsel had arrived at the Galveston County Courthouse at approximately 11:40 a.m. to announce in said cause and was informed that the Court had dismissed the cause of action for want of prosecution. In said motion appellants further stated that their counsel had driven to Galveston from Houston and 'would have arrived at the courtroom earlier than 11:30 a.m. but for severely inclement weather and extremely hazardous driving conditions, which forced counsel to slow to a speed of 20 to 25 miles per hour for more than one-third of the distance'; that he immediately requested the judge to reinstate the matter on June 11, 1973 but the court refused and that except for 'a few minutes' delay' no inconvenience would have been suffered by the court or parties had the case been then reinstated; that the plaintiffs' attorney had appeared for docket call on May 25, 1973 and announced ready for trial; that the action had not been on file for an unreasonable period of time and that no motion for continuance had ever been requested by appellants; that appellants were prepared and ready for trial for the week of June 11, 1973; that their counsel's non-appearance at the time the case was called at 'the second docket call' was not an intentional act and did not grow out of conscious indifference but was 'solely due to the extraordinary inclement weather and extremely hazardous travel conditions beyond the control of plaintiffs' counsel and about which he had no advance warning until traveling to Galveston.' In said motion appellants further state that the prior experience of their counsel in the district courts of Galveston County was limited to two trials; that in both such prior cases the Clerk of the Court had called said attorney to notify him his case had either been reached on the docket or could be expected to be reached at an early time and for him to stand by; that he inferred that such was the practice of all courts in Galveston County and had no information to the contrary; that he received no notification from the District Court or the District Clerk's office regarding the case; that he was notified by a third party as to the fact that the case would be called for trial and upon receipt of such information, he attempted to verify same through the District Clerk's office and through the Clerk of the Court but was unable to receive any verification and upon being unable to reach the court's officers in the courtroom, he immediately left his office in Houston, Texas to travel to Galveston and thereupon reported directly to the courtroom without delay. Appellants' said motion concludes that the counsel was at all times ready, able and willing and desirous of trying the case; that his failure to be present at the call on June 11, 1973 was due in part to his mistaken reliance upon his prior experience that he would be notified by the Court Clerk when the case had been called for trial, and because of the 'unexpected severe weather conditions which slowed normal travel time from Houston to Galveston by more than 25 minutes.'
A hearing was had on appellants' motion on June 29, 1973 and after hearing the testimony, the court refused to reinstate the case.
At the hearing on appellants' motion to reinstate, appellants' counsel testified he had never sought a continuance in the suit; that on May 25, 1973 he had announced ready for trial and was ready for trial; and that on June 11, 1973, the day the case was dismissed, his clients were 'standing by' for trial; that on the morning of June 11, 1973, he was called by a friend, who happened to be in the courtroom in Galveston, who informed him that the case had been 'called'; that he attempted to contact personnel in the courtroom but was unsuccessful; that he was prepared to go forward with his amended petition on June 11 when he...
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...to overlook Cessna's reassertion of negligence in disregard of the trial court's order. See Sandstrum v. Magruder, 510 S.W.2d 388 (Tex.Civ.App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.); Ship Ahoy, Inc. v. Whalen, 347 S.W.2d 662 (Tex.Civ.App.--Houston 1961, no writ); Shaw v. Universal L......
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...a strong showing should be made to excuse the absence of an attorney on such an occasion." Sandstrum v. Magruder, 510 S.W.2d 388, 391 (Tex.Civ.App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.). The Meltons cite Sandstrum and another case, S.B. & T. Gem Imports, Inc. v. Creswell, 671 S.W.2d......
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