Johnson v. Fassett

KAUFMAN, J. This is an appeal from a judgment in favor of defendants Dr. James R. Fassett and Dr. William Wong in a malpractice suit brought by Herbert and Elphania Johnson, husband and wife.

The sole ground of the appeal is an alleged abuse of discretion by the trial court in failing to grant appellants’ motion for a continuance on Monday, January 25, 1954, the date set for the trial of the case without a jury.

When the case was called, appellants’ attorney, Mr. Van Pinney, stated to the court that he had been called into the case on the preceding Saturday, that he went over the file [872]and noticed that plaintiffs’ attorneys of record had corresponded with and supplied certain information to a Dr. Erwin John Hund of Reno, Nevada. Counsel said that he attempted to reach him at his home and office in Reno over the weekend to inform him that the ease had been set for trial on Monday, but was unsuccessful. He had finally contacted the doctor’s wife at 7 a. m. the morning of the trial, and she advised him that the doctor was confined in the hospital for surgery, and that it would be a matter of two or three weeks before he could testify. Counsel stated that it would be difficult to proceed to trial in the doctor’s absence, as there was a strong possibility that expert testimony would be required; that Dr. Hund was the only expert witness 'known to counsel "who could and would appear in a trial of this nature.

Counsel for respondent then advised the court that another motion for continuance had been heard in another department of that court on the previous Friday on the ground that Elphania Johnson, one of the plaintiffs, was too ill to attend court and would have to be in the hospital on Monday. The motion was opposed on the ground that it was not made in good faith. Counsel at that time made a showing to the court that they had received calls from Mr. Belli’s office earlier in the week requesting a continuance on the ground that Mr. Belli would be engaged in another trial on Monday. That motion was denied. Counsel also called the court’s attention to the fact that the action had been pending for two years, and had been filed only a few days before the statute of limitations had run.

It appears from the record that plaintiff Elphania Johnson was in court and proceeded to testify immediately after the denial of the motion for a continuance.

No affidavit was offered by appellants’ counsel, and no showing was even made that Dr. Hund had agreed to testify in this case. Although in their brief appellants state that Dr. Hund was to be their expert medical witness and their only medical witness, and that it was through him that they were going to establish their allegations of malpractice, the record does not substantiate these statements. Counsel at no time stated to the court that this doctor had consented to appear in the case, nor did he produce any written communication from the doctor, although the ease had been pending two years.