168 Ky. 19 | Ky. Ct. App. | 1916
Opinion op the Court by
— Affirming.
Tbis is an appeal from tbe judgment of tbe Henderson Circuit Court in favor of tbe appellee for $2,605.00, and is tbe second appeal. Tbe first appeal reported in 157 Ky., 101 was from a judgment for $3,105.00 in favor of tbe appellee which was reversed for tbe sole reason that X-ray photographs were not properly accredited before their introduction as evidence by appellees.
A reversal is sought now by tbe appellant upon tbe following grounds: (1) The lower court erred in refusing tbe defendant an attachment for a material witness; (2).-that tbe X-ray photographs although properly accredited were incompetent as evidence because, there is no positive proof that the arm so pb.otograpbed was in
The absence of a material witness upon a proper showing may be cause for a continuance which if refused by the court upon motion therefor, will furnish ground for reversal. But in the absence of a motion to continue the party will be presumed to have elected to try without the witness. The order for his personal attendance granted by the court and sexved upon a physician only removes his exemption from personal, attendance and leaves him exactly as any other witness whose absence under section 315 of the Civil Code will furnish ground for continuance if asked for after a proper showing. Here there is no showing of what this witness knew or that it was material, without which appellant could net have sustained even a motion for continuance. The absence of a material witness even after a proper showing can only support a motion to continue, and in the absence of the motion for a continuance can be urged for no purpose whatever, certainly not as a ground for reversal.
After a careful consideration of the evidence in this case, we are quite certain that the verdict is supported by much competent evidence, and cannot be said to be clearly and palpably against the weight of the evidence.
Wherefore, the judgment is affirmed.