Broadwell v. Ryerson

SHINN, Acting P. J.

This is an action brought by the guardian

ad litem

of a minor, to be referred to herein as plaintiff, against Claude L. Ryerson, to recover damages for injuries suffered when he came into contact with the Ryerson car at 4th and Pine Streets in the city of Long Beach. Plaintiff had proceeded south on the west side of Pine and was struck in the intersection of Pine and 4th Streets. Defendant was driving west on 4th Street. Defendant’s answer denied negligence and alleged contributory negligence of plaintiff as a defense. In a jury trial, verdict and judgment were for the defendant.

Plaintiff had subpoenaed as a witness one Jessie F. Westergard; she failed to appear when the trial commenced on Thursday, August

22,

1946; the case was on trial throughout that day, four witnesses testified for plaintiff and the trial was continued to the following morning. Upon the opening of the morning session on Friday, plaintiff’s counsel made a motion for a continuance of the trial until the following week. As ground for the continuance it was stated that the witness had been subpoenaed on August 5, had requested that she be excused, that her request had been denied on at least three different occasions, that she had left the city on her vacation and thereafter caused to be conveyed to plaintiff’s attorneys her promise to return on 24 hours’ notice, that she had been called by telephone immediately when counsel knew the trial was to proceed, that an attempt had been made to reach her that morning by telephone at her home, her place of employment, and at a vacation resort which was within 8 hours’ driving time from the court. It was stated positively by counsel that the witness had not been excused. Nevertheless, the court stated: “I think the effect of that was to excuse her and the motion for continuance will be denied inasmuch as it would cause the Court to be impotent for the period of one year-Mr. Price: In that event, your Honor, we will dismiss on behalf of the plaintiff. The Court: You make a motion to dismiss? Mr. Price: Make a motion to dismiss at this time. The Court: Is there any objection to that?” There was an objection on the ground that defendant had a witness present

[354]

from outside the state and the court then stated: “I am sorry but your motion to dismiss will be denied. ... I do not think you have a dismissal available to you after you have started the trial. Me. Price: Your Honor, under Subdivision 4, I think the case should be dismissed, that’s our situation. We have abandoned it. The Court : That has already been denied by the Court, and you haven’t abandoned it, you have simply made a motion to dismiss. Mb. Price : All right, we will do that. On behalf of the plaintiff then we will abandon. The Court : Proceed with your trial, Mr. Hunt. Go ahead. Call the jury. Let the record show that the jurors are in their places. Proceed with your case. Mr. Price, do you desire to rest or proceed with your case f Mb. Price : No, your Honor, we do not rest. At this time we move to dismiss on behalf of the plaintiffs. The Court: You have already moved to dismiss and it has been denied. You may proceed. Mb. Price : And under Section 4, Subdivision 4- The Court : Please —please, do not continue with that matter. You can proceed with your case, or you can rest, whatever you desire to do. I will hear additional evidence.” Plaintiff’s attorney thereafter made a further motion to dismiss on account of the absence of the witness, was admonished by the court not to mention the witness before the jury, and the jury were instructed to disregard the statement. Plaintiff called the name of the absent witness and there being no response, the court said: ‘ ‘ Call another witness. Call another witness, let us not have any difficulty. ’ ’ Counsel then asked to abandon the case and the court refused to hear any argument and refused to allow counsel to approach the bench as requested by plaintiff’s attorney. The defendant took the stand to testify in his own behalf but before he had given his testimony, plaintiff’s attorney stated that he had been advised by telephone that the missing witness was on the way to court, and the court stated: “If she returns or if she arrives some time during the time that this ease is on trial, you will be permitted to put the witness on the witness stand.” On August 23, the witness not having appeared, plaintiff’s attorney asked that a bench warrant be issued for the witness, which was refused, the court stating, in part: “Where a subpoena has been issued and the witness fails to appear under these circumstances—where a person calls a witness and then makes arrangements for the witness to answer on so many hours’ notice—that settles it and I would not have jurisdiction. The motion will be denied.” And counsel stated: “I do not wish to argue the motion, your Honor, after