Traders & General Ins. Co. v. Gray

• Decision Date: 16 April 1953
• Docket Number: No. 3082,3082
• Parties: TRADERS & GENERAL INS. CO. v. GRAY.
• Court: Texas Court of Appeals

Page 327

257 S.W.2d 327

TRADERS & GENERAL INS. CO. v. GRAY.

No. 3082.

Court of Civil Appeals of Texas, Waco.

April 16, 1953.

Rehearing Denied May 7, 1953.

Butler, Binion, Rice & Cook, Houston, Weldon B. Davis, Bellville, W. N. Blanton, Jr., Houston, for appellant.

Helm & Jones, Houston, W. I. Hill, Bellville, Raymond L. McDermott and Mabel G. Howell, Houston, for appellee.

HALE, Justice.

This is a workmen's compensation case. A jury trial, beginning on June 18, 1952, resulted in a special issue verdict and judgment in favor of appellee for 50% partial incapacity covering a period of 200 1/2 weeks commencing September 8, 1951.

By the first point in its brief appellant says the trial court erred in overruling its application for a continuance. The application was based upon the absence of Hon. Frank J. Knapp, an associate in the law firm of Butler, Binion, Rice and Cook, attorneys for appellant and of E. J. Griffin, alleged to be a material witness in the case. Upon presentation of the application to the court, counsel for appellee requested permission to introduce evidence in opposition to the same, and this was done.

From the record before us it appears that this suit was filed on February 9, 1952 and was thereafter regularly set for trial for June 3d. On the latter date, however, the case was passed by agreement of the parties in order that counsel for appellant might take the oral deposition of appellee. This deposition was taken on June 12th by Hon. W. N. Blanton, Jr., an associate in the law firm of Butler, Binion, Rice and Cook. Thereupon, counsel for appellee requested an early trial of the case, it was again set for June 18th and counsel for appellant were promptly notified of such setting. The application for continuance was verified by the oath of attorney Blanton. It was therein alleged that E. J. Griffin of Beeville, Texas, was a material witness on behalf of appellant, in that he would testify, if present at the trial, that appellee was intoxicated at the time of the accident of which he complained. It was further alleged that appellant had used due diligence to secure the testimony of the witness, but had just discovered that he was in the Republic of Mexico and that his testimony could not be procured at this time.

After due consideration of the record as a whole, we have concluded that the court below did not err in overruling appellant's application for a continuance on either of the grounds therein alleged, for reasons to be noted briefly.

Rule 253, Texas Rules of Civil Procedure, provides in effect that the absence of counsel will not be good cause for a continuance or postponement of a case when called for trial, except it be allowed in the discretion of the court upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record. It is generally held that no abuse of discretion is shown in the denial of a continuance based upon the absence of counsel, where another attorney represented the complaining party at the trial of the case and there is nothing to indicate that the complaining party was deprived of any defense by the absence of the original attorney or that it was not ably and fully represented by the attorney who tried the case. 9 T.J. p. 667, Sec. 17; Springfield Fire & Marine Ins. Co. v. Barnett, Tex.Civ.App., 213 S.W. 365; Early-Foster Co. v. El Campo Rice Milling Co., Tex.Civ.App., 212 S.W. 964; Texas & N. O. R. Co. v. Cummins, Tex.Civ.App., 193 S.W. 161.

The evidence shows that the law firm of Butler, Binion, Rice and Cook, with whom attorneys Knapp and Blanton are associated, has approximately 20 lawyers connected with it. Attorney Blanton, who took the deposition of appellee on June 12th and who tried the case on June 18th, has been associated with his firm for 13 years, with the exception of the time he served in the military forces during the recent war. This record affirmatively demonstrates the fact that he is a competent and skillful attorney, and we find no indication that appellant was deprived of any defense it might have had by reason of the absence of attorney Knapp, or that it was not ably and fully represented by attorney Blanton. Consequently, we cannot say the court erred to the prejudice of appellant in refusing to continue the case on the ground of attorney Knapp's absence, notwithstanding the fact that the latter was engaged at the time of this trial in the trial of another case in another court. Commercial Standard Ins. Co. v. E. P. McKnight Chevrolet Co., Tex.Civ.App., 43 S.W.2d 636 (er. ref.); Thompson & Scott v. Hart, Tex.Civ.App., 157 S.W. 184 (er. ref.).

Although it was alleged in the application for continuance that appellant had used due diligence to procure the testimony of Griffin as a witness, the application did not contain any allegation of fact upon which the conclusion of diligence was based, as required by Rule 252, T.R.C.P. Furthermore, the testimony elicited from attorney Blanton on the hearing of the application shows that he had never talked with Griffin and while he claimed to have in his possession a written statement signed by Griffin, he refused to exhibit the same to counsel for appellee and he did not offer to introduce the same in evidence. There was no showing in the application or the evidence adduced in connection therewith that appellant or any of its attorneys had made any effort to take the deposition of Griffin and there was no showing of any facts which would justify appellant's failure to take the deposition of Griffin if it wished to avail itself of his testimony on the trial of the case. Therefore, we do not think the court erred in denying a continuance on the ground of Griffin's absence as a witness. Fritsch v. J. M. English Truck Line, Inc., Tex.Sup., 246 S.W.2d 856; Texas Employers' Ins. Ass'n v. Locke, Tex.Civ.App., 224 S.W.2d 755 (er. ref. n. r. e.); Peurifoy v. Davis, Tex.Civ.App., 101 S.W.2d 625 (er. dis.).

Under the second point in its brief appellant says the court below erred in permitting appellee to testify over timely objections as to the issue of his intoxication. Appellant alleged in its trial pleadings that appellee was in a state of intoxication at the time he sustained the injuries of which he complained. Appellee testified in effect that he was not intoxicated at that time; that he began work on the day of the accident at 4:00 o'clock P. M. and was injured about two hours later; and that he was working in a...