Texas Employers' Ins. Ass'n v. Locke, 15074.

• Decision Date: 28 October 1949
• Docket Number: No. 15074.,15074.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. LOCKE
• Court: Texas Court of Appeals

Page 755

224 S.W.2d 755

TEXAS EMPLOYERS' INS. ASS'N v. LOCKE

No. 15074.

Court of Civil Appeals of Texas. Fort Worth.

October 28, 1949.

Rehearing Denied December 2, 1949.

Nelson, Montgomery & Robertson and Lee Sellers, all of Wichita Falls, for appellant.

Caldwell, Baker & Jordan and W. B. Patterson, Jr., all of Dallas, for appellee.

SPEER, Justice.

This is a workmen's compensation case. Tom Locke, an employee of Ball Bros. Glass Company, who was the employer, sued Texas Employers' Insurance Association as insurance carrier for the Glass Company to recover for an accidental injury sustained while in the course of his employment.

Unless otherwise designated, we will refer to the parties as "employee" or "claimant," "employer," and "carrier."

At a jury trial on special issues, the employee recovered judgment and carrier has appealed, assigning nine points of error.

First point complains because the court overruled the first application for a continuance based upon the absence of Dr. Ledbetter, whose testimony carrier expected to use. Carrier is very insistent upon this point, having devoted much of its brief to it.

The motion embraced all the requisites prescribed by Rule 252, Texas Rules of Civil Procedure, except the alleged diligence used to procure the attendance of the witness does not present the statutory means of procuring attendance of witnesses.

Rule 252, T.R.C.P., is in the precise language of Article 2168, R.C.S., and will be given the same construction.

The trial court heard evidence on the motion, in the absence of the jury. This suit was filed on November 26, 1948. Counsel for carrier testified in substance that late in December, with knowledge of counsel for all parties, the case was set for trial by the court on Monday, February 28, 1949. That carrier's counsel at all times expected to use Dr. Ledbetter as a witness; that counsel did not then, nor at any time prior to February 28, advise Dr. Ledbetter personally the date on which the case was set, nor did he request the doctor to attend court on the date set, nor did Dr. Ledbetter ever promise to attend and testify; that it was the custom and practice of carrier's counsel to talk to doctors when he expected to use them in such cases and to let their "offices know when the cases are going to be set." That on Friday before February 28, counsel called Dr. Ledbetter's office on the telephone and could not reach the doctor and on the following Saturday afternoon counsel went to Dr. Ledbetter's office and left word that the case would be reached the next week and that he wanted Dr. Ledbetter to attend and testify; counsel was then advised that Dr. Ledbetter had already gone or would go on Monday, February 28, to Galveston to attend a medical meeting; that no further effort was made to contact Dr. Ledbetter. The application shows the materiality of Dr. Ledbetter's testimony.

An application for continuance which complies substantially with the statutory form, except as to stating necessary diligence, does not necessarily require the court to sustain it. Empire Gas & Fuel Co. v. Muegge, Tex.Civ.App., 116 S.W.2d 758, reversed on other grounds 135 Tex. 520, 143 S.W.2d 763.

"Statutory" diligence to procure the testimony of a witness is the issuance and service of a subpoena in a sufficiently reasonable time before trial to enable the witness to appear, Rule 176, T.R.C.P. or by taking depositions under some circumstances. Rule 186, T.R.C.P.; 9 Tex.Jur., p. 699, sec. 37; Ibid, p. 703, sec. 39. "If other means than those which the law requires when practicable for the securing of testimony are elected to be employed by a party, he does so at his peril. In general, the omission will be fatal to his application." Ibid, p. 698, sec. 36. In such instances as that first above mentioned, and applicant attempts to excuse his failure to use statutory means, the application is addressed to the judicial discretion of the trial court and unless there has been a clear abuse of that discretion the judgment will not be reversed. Ibid, p. 694, sec. 35.

There are many cases decided since the date of Texas Jurisprudence above cited, but we think the rule so well settled that we need not name all of such cases here.

In the instant case the carrier did not use statutory means of procuring the attendance of Dr. Ledbetter but relied upon another plan as above outlined. The trial court in his discretion overruled the motion. It is quite obvious that at no time between the latter part of December and the last day of February following did counsel contact or advise the witness of the setting, nor did he attempt to do so until Friday and Saturday before the case was set for trial on the following Monday, February 28.

Carrier (appellant) cites and relies upon such cases as Haley Fisheries, Inc. v. Payne, Tex.Civ.App., 48 S.W.2d 437; United Employers Casualty Co. v. McCloud, Tex.Civ.App., 146 S.W.2d 247; and Central and Montgomery Railroad Company v. Henning, 52 Tex. 466.

In each of the first two cited cases the witness resided in the city where trial was to be had, was notified of the setting and had promised to attend and testify. The last cited case involved an application for continuance on the ground of surprise when plaintiff dismissed as to a defendant (he not being present), whom the remaining defendant needed as a witness. None of these facts are involved in the instant case.

In exercising his judicial discretion, the trial court knew when the setting was made in the latter part of December and the length of time elapsing before February 28 following; that the employee was represented by out-of-county counsel who do not appear to have known that carrier expected to use Dr. Ledbetter, who had not been subpoenaed.

The trial court also knew the condition of his docket and the setting of cases thereon; he could control all such settings so as to best conform to the orderly dispatch of business. These things may have prompted him to overrule the motion. There is no abuse of discretion presented by this record and the point is overruled.

The manner in which plaintiff's (employee's) average weekly wage rate was arrived at and the testimony supporting the issues thereon are involved here. In this respect Article 8309, R.C.S., and amendments thereto and subsections 1, 2 and 3 of section 1 Vernon's Ann.Civ.St. art. 8309 and § 1, subds. 1-3, furnish the rule by which such matters are governed. In so far as is pertinent here subsection 1, supra, provides for the average weekly wage to be ascertained from the average weekly wage of the employee for a year preceding the date of the injury, if he has worked substantially the full year. By subsection 2, if he did not work at the same or similar employment for substantially the whole of the preceding year, then the wage is computed upon the basis of the average weekly wage of any other person who did work at the same or similar employment in that or a neighboring place for substantially all of the preceding year; and by subsection 3, if neither of the conditions of subsections 1 and 2 exist, then the average weekly wage rate is to be computed "in any manner which may seem just and fair to both parties."

The rule is too well established in this state to require citation of authorities that the burden of proof is upon the employee to establish his average wage rate by one of the three means provided in the foregoing subsections and in the order named, that is, he must show it cannot be computed under the first subsection before he can resort to the second, and then if it cannot be computed by either subsection 1 or 2, he may resort to No. 3. The employee plead his average weekly wage rate alternatively in the order named.

By special issues 13, 15 and 17 the facts relating to the subsections were submitted to the jury and the effect of the answers was that the rate could not be computed under either subsection 1 or 2 and the rate was computed under subsection 3.

The carrier groups his points of error 2 to 8 since they all relate to the insufficiency of the testimony tending to support the findings on subsections 1 and 2 and because such testimony as was offered was admitted over its objections based upon the grounds that it was hearsay and conclusions of persons incompetent to testify in the matters inquired about.

One point in the group asserts error because the court refused to give its requested summary instruction because the employee had not discharged his burden of proof. We shall not attempt to give in detail the testimony but will make brief references to it. As affecting subsection 1 and the jury's answer to special issue 13, the employee testified that he worked during the preceding year before his injury at so much per hour and that the days he worked during the respective weeks varied and that as he figured it all up he worked about 255 or 265 days of 8 hours each during the preceding year. There was no testimony offered by defendant tending to show he had worked more days than he had estimated. In fact the carrier did offer in evidence the work sheet kept by the employer's bookkeeper, which sheet itemized the hours worked each day, the rate paid, the...