Thanos v. Mitchell

• Decision Date: 30 June 1959
• Docket Number: No. 265,265
• Parties: Carol C. THANOS et vir v. Claude William MITCHELL.
• Court: Maryland Court of Appeals

Page 389

220 Md. 389

152 A.2d 833

Carol C. THANOS et vir v. Claude William MITCHELL.

No. 265.

Court of Appeals of Maryland.

June 30, 1959.

Jack Pinkston, Silver Spring, for appellants.

Joseph B. Simpson, Jr., Rockville (Vivian V. Simpson, Simpson & Simpson, H. Algire McFaul, Rockville, and T. Hunt Mayfield, Ellicott City, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The plaintiff Mrs. Thanos filed a written motion for a continuance because of mental illness, supported by the affidavits of two doctors that she was incapable of being in court. The defendant demanded immediate trial or dismissal of the case, and the court granted the dismissal and entered judgment for defendant for costs. The plaintiff appealed.

In June 1956, Mrs. Thanos sued the defendant Dr. Claude Mitchell in the Circuit Court for Montgomery County for malpractice, alleging that thereby she was caused to suffer physical and mental injuries and shock which left both her physical and mental systems seriously and permanently injured, and that she had been forced to undergo great pain and suffering. The lawyer who filed the suit obtained several continuances, and the defendant, one. The case was set for trial on May 6, 1958, in Montgomery County. Several days before that, plaintiff's counsel withdrew from the case and the lawyer who now represents Mrs. Thanos was retained. An affidavit of removal was filed, the case was sent to the Circuit Court for Howard County, and set for trial in September 1958 on the following November 17. Mrs. Thanos' lawyer says that during the week of November 9th he was unable to reach either Mr. or Mrs. Thanos until Friday, the 14th, about 6:00 p. m., when Mr. Thanos returned from a business trip out of town. He was then told by Mr. Thanos that his wife was ill and would not be able to go to court next week.

Mr. Thanos was told by his lawyer that he should obtain medical advice as to the seriousness of his wife's condition and, as a result, two doctors signed and swore to separate statements as to her condition, both dated November 14. One of these doctors, who had treated Mrs. Thanos for two years, stated in his affidavit that when he had examined her on that day, she was 'quite confused, agitated, withdrawn, belligerent and resistive,' and that she was 'quite incapable of giving evidence, standing trial or being cross-questioned,' but that she should be ready to stand trial in one month. The other doctor stated flatly that Mrs. Thanos was 'mentally ill' and that she could not be a reliable witness and the effects of being involved in a trial at the time might easily aggravate her mental illness. Mr. Thanos, in his affidavit to the motion for a continuance, swore that his wife was mentally ill and that the doctors' certificates were authentic.

When the certificates were presented to Mrs. Thanos' counsel on the morning of Saturday, November 15, he called the lawyer in Howard County representing the defendant and Judge Macgill, telling them of the facts. When the case was called for trial on the morning of the 17th, the jury panel was in attendance, as were the defendant and two of his medical witnesses. The defendant had on call for appearance in court three other physicians. The attorney for the appellant made a statement to the court, requesting continuance until after the Christmas holidays. The attorney for the appellee replied, detailing the very extended course of the litigation and the various postponements, as well as telling the court that Mrs. Thanos' lawyer had not told him, when they chanced to meet on the evening of Friday, November 14, that Mrs. Thanos was ill. Judge Macgill said that on Friday afternoon Mrs. Thanos' attorney had asked for a postponement of the case, not on the grounds of his client's illness, but because a doctor who was to testify for the plaintiff wished to attend a medical convention, and that it was not fair to the taxpayers, to the jury, and the public for the case to drag on and on. He indicated that he felt that if Mrs. Thanos were sick she had been sick before the affidavits were made on Friday, and said that he would deny the continuance. The plaintiff would not go to trial, and the case was dismissed.

There can be no doubt that whether to grant a continuance is in the sound discretion of the trial court, and unless he acts arbitrarily in the exercise of that discretion, his action will not be reviewed on appeal; Harris v. State, 141 Md. 526, 530, 119 A. 154; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 454, 149 A. 4, 565; Millstein v. Yost, 197 Md. 348, 350, 79 A.2d 149. In some instances, however, refusal to grant a continuance has been held to be reversible error. Plank v. Summers, 205 Md. 598, 109 A.2d 914, 917. We think the case before us is one of the exceptional instances where there was prejudicial error. Undoubtedly, the trial court was influenced by the fact that seemingly there had been dilatory tactics over a long period of time on the part of Mrs. Thanos. We cannot overlook, however, the fact that the two affidavits of the doctors, which supported the motion, were not attempted to be contradicted or controverted, either at the time of the trial or before us, except by suspicion and conjecture. The facts and opinions of the doctors, as expressed in their affidavits, left no doubt that it would be impossible for the plaintiff to be in court to present her case. It appeared that Mrs. Thanos would be available within a reasonable time (a different situation would be presented if her illness were permanent or the prognosis was for a lengthy disability). As Judge Henderson said in Plank v. Summers, supra, to have required the case to go to trial without her presence, would have been 'like the play of Hamlet with Hamlet left out.' We said in Jackson v. State, 214 Md. 454, 459, 135 A.2d 638, 640, that (as Maryland Rule 527 contemplates) 'To show such an abuse of discretion and prejudice for failure to continue a case because of the absence of witnesses, the party requesting the continuance should show: that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and that he had made diligent and proper efforts to secure the evidence.' The record shows that all these standards were met by Mrs. Thanos.

Courts of other states have been in almost complete accord that where the evidence that a party is ill and unable to attend court is uncontradicted and his testimony is material and there would be no real and substantial prejudice to the other side in a delay, it is an abuse of discretion to refuse continuance of his case. A case in which mental illness was also involved and in which it was held error to refuse the continuance is Cornwell v. Cornwell, 73 App.D.C. 233, 118 F.2d 396. Other pertinent cases include: Bernard's Fur Shop, Inc. v. De Witt, D.C.Mun.App., 102 A.2d 462; Overstreet v. Citizens' Union Nat. Bank, 256 Ky. 653, 76 S.W.2d 641; O'Brien v. King, 254 App.Div. 318, 5 N.Y.S.2d 32; Bolduc v. Nadeau, 128 Me. 542, 148 A. 565. See also Moore v. Moore, 211 Ga. 233, 85 S.E.2d 12; Annotation 47 A.L.R.2d 1058; 12 Am.Jur. Continuances, Sec. 15, p. 457.

The appellee moved to dismiss the appeal because the statements of counsel before Judge Macgill were not printed in the record extract by the appellant. We think the record extract sufficiently complied with the rules, and, in any event, the appellee in his appendix furnished the material which he claims should have been printed by the appellant. The motion to dismiss is denied, and the judgment of the trial court is reversed and the case remanded for further proceedings.

Judgment reversed and case remanded for further proceedings, costs to abide the final result.

PRESCOTT, Judge (dissenting).

Ordinarily the question of whether or not the trial court abused its discretion in refusing to grant a continuance or postponement of a case would not warrant or justify a dissenting opinion. In this case, however, the majority opinion violates two of our rules and will have a far-reaching effect in unduly restricting the nisi prius judges in the conduct of their courts; hence, I feel justified in stating my views thereon.

The opinion of the Court is skillfully and persuasively written, but this is due, mainly, to the statement of the facts. I shall not say that they are overstated in order to reach the result obtained; it is fair to assert that they most certainly are not understated.

Moreover, the facts relied upon, to a great extent, are merely statements of counsel in argument in this Court. They are not contained in either the briefs or the transcript; consequently, they were not part of the record, not before Judge Macgill and not properly before this Court. For instance, the majority opinion states: 'Mrs. Thanos' lawyer says that during the week of November 9, he was unable to reach either Mr. or Mrs. Thanos until Friday, the 14th, about 6:00 P.M., when Mr. Thanos returned from a business trip out of town. He was then told by Mr. Thanos that his wife was ill and would not be able to go to court next week. [He stated to Judge Macgill that he was involved in a jury trial 'clear up to Friday noon' of that week. Appellee's appendix, p. 14.] Mr. Thanos was told by his lawyer that he should obtain medical advice as to the seriousness of his wife's condition, and, as a result, two doctors signed and swore to separate statements as to her condition * * *.' (Emphasis added.) While the doctor's affidavits are in the record, all the rest of the quotation is simply the statement of counsel and, as clearly indicated, it even contains hearsay statements made to him. The danger inherent in reversing the action of a trial court upon the mere statements of counse...