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CAREY v. PHILADELPHIA TRANSPORTATION CO. (01/03/68)

decided: January 3, 1968.

CAREY
v.
PHILADELPHIA TRANSPORTATION CO., APPELLANT



Appeals from judgments of Court of Common Pleas Nos. 7, 1, 5 of Philadelphia County, and County Court of Philadelphia (all heard in Court of Common Pleas No. 6), March T., 1961, Nos. 4183, 4184, 4185 and 11955-E, in case of George Carey v. Philadelphia Transportation Co.; Charles Lambert v. Same; Patrick O'Rourke, minor, by his parent and natural guardian, Margaret E. O'Rourke, and Margaret E. O'Rourke, in her own right, and William O'Rourke v. Same; Stanley Tarasiewicz, a minor, by his parent and natural guardian, Helen Tarasiewicz, and in her own right v. Same.

COUNSEL

William J. McKinley, Jr., for appellant.

Andrew F. Napoli, with him James M. Moran, and Cohen & Verlin, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.

Author: Musmanno

[ 428 Pa. Page 323]

The five plaintiffs in this case were injured in an accident which occurred on November 24, 1960, when the automobile in which they were riding came into collision with a bus owned by the defendant and operated by one of its employees. The plaintiffs filed suits in trespass against the defendant company. Owing to the deplorable backlog in untried cases in Philadelphia County, the case (all suits having been consolidated for trial) did not reach the courtroom until October 11, 1966. The submission of evidence on behalf of the plaintiffs terminated on Thursday, October 13, 1966. The court then recessed for four days until the succeeding Monday, October 17, when the defendant proceeded to present its case.

After four defense witnesses had been heard, defendant's counsel notified the court that one of his witnesses, a Joseph McClain, although subpoenaed, had failed to appear and requested that the court issue a bench warrant to compel McClain's appearance. The bench warrant issued, but McClain could not be found, and defendant's counsel then moved for withdrawal of a juror and continuance of the case, because of the absence of McClain. The court refused the continuance and the case was submitted to the jury, which returned verdicts in favor of the plaintiffs.

The defendant has appealed, urging a new trial on the basis, inter alia, that the trial court had erred in

[ 428 Pa. Page 324]

    refusing the requested continuance. The rule applicable to a situation of this kind is well summarized in 4 Standard Pennsylvania Practice, 627: ". . . while it is the policy of the law that the parties to an action have the benefit of the personal attendance of material witnesses wherever reasonably practicable, it necessarily lies within the discretion of the trial court to determine, in the light of all the circumstances of each case, whether or not a cause before it should be continued on the ground of absence of material witnesses. Such a continuance will be granted only where it is shown that their expected testimony is competent and material, and not merely cumulative or impeaching; that it is credible and would probably affect the result, that it probably can be obtained at a future trial, and that due diligence has been exercised to secure it for the trial, including efforts to subpoena the absent witnesses and to take their depositions."

It would appear from the record that the defendant's request for a continuance did not meet the requirements here indicated. The witness McClain when subpoenaed had been directed to report to the defendant's counsel's office in order to prepare his testimony. He did visit defendant's counsel's office at the beginning of the trial but at no time appeared in the courtroom. Without finding fault anywhere or placing blame on anyone, it is not apparent that the defendant exercised that diligence in this matter which would justify so drastic a procedure as ordering a new trial, which would necessitate another long delay in the final adjudication of the plaintiffs' claims.

Another reason supporting the judge's refusal to grant a continuance, is that, when counsel made his motion for a continuance, he did not specify what the witness would testify to. It is not enough to say that a witness is missing. There must be some ...


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