APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Gibbons and Garth, Circuit Judges.
This is a diversity action seeking damages for bodily injury resulting from an automobile accident occurring in Pennsylvania on the afternoon of May 29, 1967. The defendant Kassm was operating his automobile and collided with a motor vehicle operated by Smetzer, who had as his passenger, Ondrey E. Gaspar, who was seriously injured. The complaint alleges that Kassm was negligent and that the collision was the result of his negligence. Smetzer was brought upon the record as a third party defendant by Kassm. At the time of the accident Kassm was employed as a teacher of accounting at Lafayette College; at the time of the trial he was supposed to be functioning on the faculty of Rensselaer Polytechnic Institute, at Troy, New York. There was a substantial verdict in favor of the plaintiffs against Kassm and the jury exonerated Smetzer.*fn1
At some date not specified by the record but prior to Christmas 1972, the present cause of action appeared in the district court's "pool" preparatory to trial listing. Kassm was notified of the trial date. He, however, scheduled a holiday visit to Damascus, Syria, intending to return and take up his teaching at Rensselaer Institute on January 22, 1973. By a letter dated January 8, 1973 the court scheduled the case for trial on February 14, 1973. This allowed three weeks for preparation for trial after Kassm's scheduled return on January 22. Soon after January 22, counsel attempted to contact Kassm at his home in New York State and at Rensselaer Institute and was advised that Kassm had not returned on schedule due to illness. In fact the first word as to Kassm's illness was received by the Rensselaer Institute, which informed Kassm's counsel, and in some way counsel received the impression that at that time Kassm was suffering from a back injury and so wrote to Judge Newcomer requesting a postponement on February 2, 1973. Opposing counsel were informed also of the alleged unavailability of Kassm. On February 6, however, the trial judge stated by letter to Kassm's counsel, "The case will, of course, proceed as scheduled." On February 9, Kassm's counsel filed a formal motion for continuance. Supporting the motion was a telegram from Kassm's wife to the Rensselaer Polytechnic Institute stating that Kassm was seriously ill. A formal supplemental motion for continuance was filed on February 12. Annexed to this motion was a letter from Mrs. Kassm, dated February 4, confirming that Kassm was ill and that his return to normal activities would be delayed for three to six months. On February 13 the court denied these motions.
On February 14, 1973, the day set for trial, counsel renewed his motion for continuance and submitted a cable from Mrs. Kassm stating that Kassm "got nurves [sic] breakdown." The court in the absence of the jury called counsel to side bar and the following discussion took place.
"Mr. Anderson [counsel for Kassm]: If the Court please, on behalf of the defendant and third-party plaintiff, I have previously, on February 9, filed a motion for continuance and I supplemented that in writing to your Honor on the 10th.
"By way of a further supplement I will hand the Court at this time a copy of a telegram that I received and which I mentioned to your Honor by telephone. I would appreciate it if that could be incorporated as Exhibit E to my Motion for Continuance as evidence of the illness and disability of my client and his absence from the country.
"The Court: Very well. That will be done.
"Mr. Anderson: Do I understand that my motion is denied, your Honor?
"The Court: Yes, Mr. Anderson, your motion is denied and we have entered an order to that effect. Have you not received it as yet?
"Mr. Anderson: No, sir, I have not.
"The Court: Well, that was done yesterday or the day before and the motion was denied.
"Mr. Anderson: My motion as renewed at this time is also denied?
"The Court: Yes, your motion as renewed is ...