Connor v. Jackson

MOORE, P. J. Recovery for alleged injuries by an automobile having been denied, appellant now demands a reversal of the judgment by reason of (1) the court’s denial of his motion for a continuance, (2) its exclusion of a writing by respondent Jackson purporting to admit his liability, and (3) rulings improperly excluding “material portions of evidence.”

About 3 p. m., April 13, 1947, Timothy Connor (18 months of age) accompanied his father to the service station of Van and Bill in Los Angeles County and while there the infant received serious bodily injuries. On May 29, 1947, acting through his guardian ad litem, Timothy filed the instant action against respondents alleging that he was struck by an automobile owned by respondent corporation of Oregon, authorized to transact business in California, driven negligently by respondent Jackson who was then acting under the direction of Freeman and Van Der Ham. The action was duly set for trial on June 21,1948.

On the trial date appellant’s counsel moved for a continuance. The motion was based upon the affidavit* of appellant’s [465]attorney which contains no statement of the anticipated testimony, no excuse for failure within the 13 months that had elapsed' since the commencement of the action to procure service of subpoena on Jackson or to obtain his deposition. That counsel vainly endeavored to locate and subpoena the witness and his opinion that the witness’s testimony is material do not meet the statutory requirements of a supporting affidavit for the continuance of a trial. (Code Civ. Proc., § 595.) Where the application for continuance “is made on account of the absence of a material witness” the court may require that the affidavit state “the evidence which he expects to obtain.” The unavoidable absence of a party does not necessarily compel the court to grant a continuance. (Sheldon v. Landwehr, 159 Cal. 778, 781 [116 P. 44].) Appellant’s statement to this court that the absent witness was the only person who could testify to the manner of his operating the automobile does not improve the virtue of the motion and affidavit' which were addressed to the trial court. To have been of compelling merit the affidavit should have averred that Jackson would if present testify that he did some negligent act that caused injury to Timothy. Such facts must be stated in the supporting affidavit so that when read in evidence the document will present facts that will tend to support a judgment. The affidavit is devoid of evidence that Jackson was in the remotest degree negligent in operating his car.