Sun Ins. Office v. Stegar.

stated in the notice and pursuant to said notice, which had been served on the 8th day of said month. The case was called for trial on the 15th day of November, 1907, and local counsel for appellant entered a motion for a continuance, which motion was supported by affidavit. The affidavit showed the materiality of the evidence embraced in the absent depositions and the diligence used in procuring same. The affidavit also showed the unavoidable absence of chief counsel for appellant and the fact that local counsel was unprepared to conduct the trial of the case, as he was not employed for that purpose. The adverse party did not admit the affidavit to be read as the evidence of the absent witnesses, but the court, nevertheless, overruled the motion for a continuance. Appellant's counsel thereupon moved the court to continue the case one day, so that chief counsel might be present, and that motion was likewise overruled. Appellant's counsel then moved the court for time to allow him to go to long-distance telephone and confer with chief counsel, which motion was also overruled, and he was forced into trial. At the conclusion of appellee's evidence, appellant's counsel moved the court to adjourn until 1 o'clock that day, in the expectation that the delayed depositions would arrive on a 12:40 train. This motion was also overruled. The record


shows that within five minutes after appellant's counsel began his argument the missing depositions arrived, and appellant's counsel then suspended and moved the court to allow him to read the depositions as evidence for the appellant, which motion was also overruled.

We think the court erred, under all the circumstances, in refusing the appellant an opportunity to get its evidence before the jury. It had not been at all

Sun Ins. Office v. Stegar.

dilatory in preparing the case. The petition was filed on the 18th of October, and the answer on the 29th. On the 8th of November, and before the case had been set down for trial, it gave notice to take the depositions on the 12th of November in Chicago, Ill., of its only witnesses. The depositions were properly taken on the day contained in the notice, and mailed to the clerk of the court on the 13th of November, and should have reached Princeton before the day of trial, the 15th of November; but by some delay, which is not accounted for in the record, and which, perhaps, can not be accounted for, when the case was called for trial on the 15th, the depositions, which contained the only evidence which appellant had, or could have, had not arrived. Within less than one month from the time the petition was filed the issues were made up, proof taken, and the case called for trial. Certainly there can not be under these circumstances, any claim that the defendant had shown a disposition to delay the action. The affidavit which was filed for continuance showed that the depositions had been taken on the 12th and the materiality of the evidence which they contained. Passing the question as to whether or not the court should have continued the case, still it seems to us that he should have granted the short delay of one hour after plaintiff's evidence was in, which was asked by the defendant in order that, if the train from Chicago, which was due to arrive at 12:40, contained the missing depositions, they might be read in its behalf. The short time which was asked is the usual dinner hour, and many courts adjourn between 12 and 1 o'clock for dinner; and, had this been done, appellant could have introduced all its evidence, as it afterwards transpired that the 12:40 train did bring in the depositions, which were in the hands of the clerk with

Sun Ins. Office v. Stegar.

in five minutes after appellant's counsel commenced the first argument to the jury. And here again the court might have remedied the misfortune which had befallen appellant by the delay of the mails, by sustaining its motion to permit the argument to stop and allowing the testimony of appellant to be read to the jury.

We recognize the rule that the granting of continuances and the admission of belated testimony is within. the discretion of the court; but this rule is always qualified by the principle that the discretion is not an arbitrary, but a judicial, discretion, and we think, under all the circumstances of this case, the trial court abused its discretion in refusing to permit the depositions of appellant to be read to the jury after they arrived. The additional time required would not have been more than from 30 minutes to an hour, and this would have enabled appellant to have at least made a show of maintaining its defense as set up in its answer. The belated depositions are in the record before us, and they contradict the testimony of the witnesses for the plaintiff on all material points, and. there can be no doubt that the defense of the appellant. was left entirely unsustained by the action of the court in refusing to allow the introduction of the depositions of the only witnesses who knew anything of its side of the case. In Simms v. Alcorn, 1 Bibb 348, the court. said: "An application to a court for the continuance of the case is an appeal to its sound discretion; and while on the one hand, the court should grant the indulgence where it is necessary to the attainment of justice, on the other hand, they should guard against. its being used as an instrument of delay and injustice." And in Gaskin v. City of Georgetown, 119 Ky. 251, 26 Ky. Law Rep. 89, 80 S. W. 821, we said:

Louisville Ry. Co. v. McCarthy.

"Trial courts are allowed a broad discretion in the matter of granting or refusing continuances, which should be exercised in any given case according to the facts and circumstances thereof; but when there is an abuse of such discretion, operating to the prejudice of the substantial rights of the party applying for the continuance, it constitutes an error which may be corrected upon appeal by the court of revisory power."

The conclusion we have reached, as above set forth, renders it unnecessary to discuss any of the other errors urged by appellant, as a new trial will afford an ample remedy for them all.

For the reasons herein expressed, the judgment is reversed for a new trial.



Louisville Ry. Co. v. McCarthy

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).


Judgment for plaintiff. Defendant appeals.-Affirmed.

Negligence-Imputed Negligence-Husband and Wife.-Under the Weissinger act, defining the rights of married women, a wife is not chargeable with the negligent acts of her husband, unless the relation of master and servant or principal and agent exists; and, where personal injury results to the wife

Louisville Ry. Co. v. McCarthy.

from the concurrent negligence of the husband and a third person, the negligence of the husband is not ordinarily attributable to the wife, so as to bar a recovery by her.

GREENE & VANWINKLE of counsel.

1. Appellant will urge but one ground upon which a reversal is asked, and that is, that the court erred in refusing to give instruction A, offered by the defendant, which is as follows: "The court instructs the jury that although they may believe from the evidence that the motorman in charge of the car which collided with the surrey in which plaintiff was riding was negligent in the management and operation of his car at the time of said collision, yet, if they futher believe from the evidence that the person driving said surrey was also negligent at said time and place, and but for his negligence contributing to or helping to bring about said accident the same would not have occurred, then the law is for the defendant and the jury should so find."

2. The appellant also complains of that portion of Instruction No. 5 in which the court gave to the jury the converse of the instruction offered by appellant. The portion of instruction No. 5 complained of is as follows: "In this case, gentlemen, the plaintiff is responsible only for such negligence, if any there was, that she was guilty of. She is not liable for any contributory negligence, if any there was, that may have been committed by her husband, who was the driver of the surrey."


Pennsylvania R. R. Co. v. Goodenough, 28 Atl., 3; Morris v. Chicago, M. & St. P. R. Co., 26 Fed. Rep., 22; Toledo St. L. & K. C. R. Co. v. Crittenden, 42 Ill. App., 469; Gulf C. & S. F R. Co. v. Greenlee, 62 Tex., 344; Carlisle v. Town of Speldon, 58 Vt., 440; Borough of Nanticoke v. Warve, 106 Pa., 373; City of Joliet v. Seward, 86 Ill., 402; Yan v. Ottuma, 60 Iowa, 429; Peck v. N. H. & H. R. Co., 50 Ct., 379; Galveston H. & S. A. R. Co. v. Kutac, 72 Texas, 643; Huntson v. Trumbull, 2 McCreary, 314; Street v. Holyoke, 105 Mass., 82.)

MORTON K. YONTZ for appellee.

It must be observed that the courts of many states and the United States' courts have passed upon this question, and the concensus of judicial opinion is to the effect that the occupant is

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