86 Va. 835 | Va. | 1890
delivered the opinion of the court.
The second count is to the same effect, with the additional averment that the plaintiff was under the orders of oneThacker, the defendants’ superintendent or boss of the work, who negligently caused a boat, in which the plaintiff was engaged about his work, to be propelled so near a sluice that it became unmanageable, and was carried violently through the sluice against the rocks and logs therein, and the plaintiff thereby injured. This declaration was demurred to by the defendants, but the demurrer was overruled.
When the case was called for trial, the defendants moved for a continuance on the ground of the absence of a material witness, hut the court overruled the motion, and the defendants excepted. The defendants then renewed the motion for a continuance on the ground of the absence of their leading counsel by reason of sickness, hut the court overruled this motion; and the defendants again excepted. During the trial various other exceptions were taken by the defendants to certain rulings of the court. The jury found a verdict for the plaintiff, and assessed his damages at $1,800, whereupon the defendants moved the court to set aside the verdict and to grant them a new trial, upon the ground that the verdict was contrary to the law and the evidence, but the court overruled the motion and gave judgment according to the finding of the jury; and the defendants again excepted, and in this bill of exceptions
The questions for decision are presented in the defendants’ several bills of exception:
1st. By the first bill of exceptions it appears that on the calling of the cause for trial, and before the jury was sworn, the defendants, by their counsel, stated to the court that R. W. Brown was a material witness for them, and lived at Balcony Ralls, in the county of Rockbridge, but that in summoning their witness, they had, by mistake, summoned W. P. Brown, .a brother of their witness, and did not discover their error until the evening before the case was called, when it was too late to secure his attendance at the trial; that it appeared from the testimony of W. B. Holt at the last trial, and that it would appear by the testimony of said Holt, who was present in court, and whom they were ready to produce, that said Brown was a material witness for. the defendants, and that as soon as they discovered their mistake they had used their best efforts to procure the attendance of the witness, but without success; and that for these reasons they moved that the cause be postponed or continued to enable them to obtain the witness. But the court being of opinion that the failure to summon the witness was the error of the defendants, and not the fault of any public officer, overruled the motion; and the defendants excepted. We are of the opinion that, under the circumstances, the exception is well taken.
Professor Minor says: The continuance of a cause to another term of the court, is a matter peculiarly within the discretion of the court below, and the United States courts hold it, as they hold all other matters of discretion, to be no ground upon which error can be imputed. *, * * In Virginia the ill exercise of the discretion may be a ground of error; but it is a well established principle, that the appellate court will only reverse a judgment for that cause, when the refusal of the con
The principle thus deduced from the authorities referred to, is unquestionably stated with accuracy by the learned author, but it does not quite reach the peculiar circumstances of the case in hand, which rests upon the ground of mistake. The principle applicable in the present case is correctly and clearly stated in 3d Am. and Eng. Enc. of Law, p. 817, where the authorities are collected, and where it is said: “ When it appears in the progress of a trial that a cause, if required to proceed, will suffer from the honest mistake of the party or his counsel, a continuance should be granted. Bntthe mistaken advice of counsel not to prepare for trial is insufficient;” citing-Earnest v. Napier, 15 Ga., 306; Bargin v. Riggs, 40 Ill., 61; Kelsey v. Berry, 40 Ill., 69. And the same principle was recognized by this court in Hook v. Nanny, 4 H. & M., 157, note.
These authorities distinctly announce the proposition that a motion for a continuance is addressed to the sound discretion of the court, in view of all the circumstances of the case; and that an appellate court will review and reverse the action of an inferior court, if, in the exercise of its discretion, it has harshly or unjustly refused a continuance, and especially where there is nothing in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade a trial, and not to prepare for it.
In order to pass intelligently upon the merits of the motion for continuance which was refused in the present case, it is necessary to notice briefly the character of the plaintiff’s claim, and so much of the evidence, pro and con, as will illustrate the importance to the defendants of the continuance asked foiv The plaintiff alleges in his declaration, and testifies at the trial,
Under these circumstances, and in the absence of any suspicion of a purpose to delay or evade the trial by any unfair play-on their part, the defendants moved for a continuance, which the court refused upon the manifestly insufficient ground that' the mistake was that of the defendants, and not the fault of any public officer. The law does not thus harshly deal with the infirmities of human nature. It cannot be said, in the t'me' sense of the term, that the defendants were wanting in due diligence, for they promptly took steps intended to effect the desired object of securing the testimony so essential to their defense. But they made a mistake, an honest mistake, and summoned the wrong man, he being one of two brothers. Under the circumstances, and in the light of the authorities above referred to, the court plainly erred in refusing the continuance.
2d. The defendants’ second bill of exceptions is founded upon the action of the court refusing to continue the cause on the ground of the absence, by reason of sickness, of the lead
In the last named ease a continuance was granted by the supreme court of the United States upon the ground that the leading attorney for the state of Rhode Island was ill, as stated by his associate, the attorney-general of that state, although the latter was present. That was a case of exceptional importance, involving questions of grave concern to two states of the union respecting certain territory and population held by the state of Massachusetts, but claimed by the state of Rhode Island; and from the report of the case, which is meagre, the inference is, that the court was influenced more by the deep concern and high importance of the case than by any purpose to exemplify the rule in such cases; for as the attorney-general of the state of Rhode Island was present and making the motion for continuance, and only upon the ground of the absence of the leading counsel, it is hardly probable that, the supreme court of the United States would have grauted the
It may, therefore, be said, in general, that a continuance may be granted, not only for the absence of a party or of his counsel, from unavoidable circumstances, but for honest mistake or anything amounting to a serious surprise. Tn all such cases, however, the application -should be watched with jealousy,and the discretionary power of the court exercised with caution; but, if there is no sufficient. reason to induce the belief that the alleged ground of the motion is feigned, a continuance should be granted, rather than to seriously imperil the just determination of the cause by refusing it.
Under the peculiar circumstances of the present case, and especially in view of the very harsh ruling on the preceding motion, we are clearly of opinion that the circuit court erred in refusing to continue the case on the ground of the absence of the leading counsel of the defendants, by reason of sickness.
8d. The defendants’ third bill of exceptions is to the action of the trial court, in admitting, notwithstanding their protest, the evidence of one M. L. Harris, a witness introduced by the plaintiff. This witness testified that after the institution of this suit, he heard a colored man, George Williams, who charters excursion trains on the defendants' line of railroad, tell Sam White that he was requested by the defendants to get him to go down to Richmond to see the defendants, or one of their agents, and to testify for them in regard to the Trice case; that Sam Ayhite said he would not go unless five dollars was paid to him, to which Geo. Williams replied, “ Meet me at the train in the morning.” The witness, Harris, says that this occurred at Cocke’s tavern, wjiere he was clerk and salesman in a store, and that there were a number of persons in® the store at the time, including Sam White and Geo. Williams.
George Williams was put upon the stand and he positively denied making any such statement. Ho effort was made to
In the present case, there is not a particle of evidence that George Williams was ever the agent of the appellants for any purpose. On the contrary, the only connection between him and them that ever existed, so far as shown in evidence, is that he occasionally, for himself and his race, chartered excursion trains on their road. If this could make him their agent for the unsavory business of suborning evidence, and bind them by his real or pretended declarations, then every passenger who ever traveled on their road would also be their agents.
4th. The defendants’ fourth bill of exceptions is as to the giving, refusing and modifying certain instructions asked for by the parties, respectively. But in view of the errors aforesaid, it is not necessary to discuss the questions arising on the instructions, as the case must go back for a new trial.
•5th. The defendants’ fifth bill of exceptions is to the action of the court refusing the defendants’ motion to set aside the verdict and grant a new trial. As the judgment of the court below must be reversed for the errors alread3r pointed out, and the cause remanded for a new trial, it is unnecessary to enter into a discussion of the evidence, which is involved in this exception. It is sufficient to say, that for the errors aforesaid, the judgment of the court below must be reversed and annulled, the verdict of the jury set aside, and the cause remanded to said circuit court for a new trial to be had therein in accordance with the views expressed in this opinion.
Judgment reversed.