Danziger v. Brandes

457 S.W.2d 146, 1970 Tex. App. LEXIS 2012
CourtCourt of Appeals of Texas
DecidedJune 19, 1970
DocketNo. 17491
StatusPublished
Cited by6 cases

This text of 457 S.W.2d 146 (Danziger v. Brandes) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Danziger v. Brandes, 457 S.W.2d 146, 1970 Tex. App. LEXIS 2012 (Tex. Ct. App. 1970).

Opinion

DIXON, Chief Justice.

This suit was originally brought by appellants Rubin Danziger and wife Ala Danziger against appellee Joseph Brandes and another defendant, Selma Farmer Ruth. Appellants sued for personal injuries alleged to have been sustained by Ala Danziger in two successive automobile collisions several months apart. The first collision, which occurred November 13, 1966, involved appellee Brandes. The second collision, which occurred March 6, 1967, involved Selma Farmer Ruth.

Appellee Brandes filed a motion to sever the causes of action. The motion was sustained. This appeal involves only a judgment in favor of Brandes that appellants take nothing against him.

A jury found from a preponderance of the evidence that appellee Brandes failed to keep a proper lookout, which failure [148]*148was a proximate cause of the accident. But the jury answered “No” in response to an issue as to whether Ala Danziger suffered an injury at the time and on the occasion in question; answered “No” as to whether appellee failed properly to apply his brakes; and answered “None” to each of two damage issues.

Only a partial statement of facts is in the record before us. The evidence before us consists of the testimony of Ala Dan-ziger herself and the answers of Dr. Wolfram to written interrogatories. Also a number of exhibits are included. It is undisputed that Ala Danziger has a long history of illness and has had a number of accidents prior to that involved in this appeal. She has experienced great nervousness, perhaps stemming from her experiences in a German concentration camp during World War II. Also she had recently undergone surgery.

In their first point of error appellants say that the trial court abused its discretion when it denied them the right to present the testimony of Dr. Edward M. Krusen.

Dr. Julius Wolfram, appellants’ family doctor, treated Ala Danziger the day following the accident. He subsequently referred her to Dr. Krusen at Baylor Hospital, where a nurse applied heat and gave massage treatments to her arm and neck. Later Dr. Krusen referred her to Dr. Charles Wilson, who she says is a brain surgeon. She also had the services of Dr. A. D. Sears and other physicians.

At 4:30 o’clock on the afternoon of the first day of the trial an adjournment was taken until 9:00 o’clock the next morning. Appellants’ attorney and the court are not in agreement as to the reason for the adjournment' at that time. In any event the trial was resumed the next morning with Ala Danziger on the stand. Hospital records and medical statements were introduced. Defendant rested his case soon after 10:00 o’clock. Appellants’ attorney then asked the court for a recess until 11:00 o’clock. He stated that he had communicated with Dr. Krusen the night before and the doctor had promised to appear at 11:00 to testify. Dr. Krusen had not been subpoenaed. The court refused to grant the request for a recess and proceeded to hear objections to the charge, which had already been prepared. Ten or fifteen minutes before 11:00 o’clock the court read the charge to the jury and the arguments of attorneys to the jury then began. The record does not show whether Dr. Krusen appeared at 11:00. Neither Dr. Wolfram nor Dr. Wilson nor Dr. Sears was called as a witness.

A trial court has broad discretionary power to grant or refuse to grant a recess to await the arrival of a witness. Its refusal to do so constitutes reversible error only when there is an abuse of discretion. In this case we cannot say that there was an abuse of discretion. Further, if the court’s refusal was error, it was harmless error. Rule 434, Vernon’s Texas Rules of Civil Procedure.

We have reached the above conclusions for these reasons:

1. There is no showing that Dr. Krusen actually did arrive in court at 11:00 o’clock, or at any other time.

2. There is only a partial statement of facts in the record. Therefore it is impossible for us to determine whether the error of the court, if it was error, was calculated to cause and probably did cause the rendition of an improper verdict. Barrios v. Davis, 415 S.W.2d 714, 716 (Tex.Civ.App., Houston 1967, no writ); Klimist v. Bearden, 374 S.W.2d 783 (Tex.Civ.App., Tyler 1964, no writ); Wright v. Mack Motor Truck Corp., 336 S.W.2d 831 (Tex.Civ.App., Houston 1960, no writ).

3. Dr. Krusen did not see or treat Mrs. Danziger until January 13, 1967. His report, dated January 18, 1967, to Dr. Wolfram, appellants’ family doctor, is in the record as part of Dr. Wolfram’s deposition. It was introduced in evidence, so [149]*149was before the jury. In his report Dr. Krusen said, “This patient, I gather, was injured in a rear-end auto collision December 9 or 11, 1966.” He also described the ailments of Mrs. Danziger. Thus the jury really had the benefit of Dr. Krusen’s opinion and diagnosis.

4. Dr. Krusen was not subpoenaed. He was not even contacted until the night before he was supposed to come to court at 11:00 o’clock A.M. Under the circumstances appellants ran the risk of being put to trial without Dr. Krusen’s testimony. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952). We are aware that there are cases holding that under some circumstances a litigant is entitled to rely on the promise of a witness to appear in court though no subpoena was issued for said witness. But we do not believe the circumstances in the present case come within the holdings of such cases.

5. There is no proper bill of exceptions in the record showing what the testimony of Dr. Krusen would have been.

6. Appellants have not presented a point of error that the evidence was insufficient to support the jury’s findings that Ala Danziger was not injured in the collision of November 13, 1966, or that she suffered no damages therefrom.

We overrule appellants’ first point.1

In their second point of error appellants assert that the court erred in denying their motion to withdraw their announcement of ready and their motion to declare a mistrial following the court’s comments before the jury in denying time to present testimony of Dr. Krusen.

In denying appellants permission to withdraw their announcement of ready and in overruling their motion for mistrial the court did not abuse its discretion. Appellants had made an unqualified announcement of ready for trial. The reasons given in our discussion of appellants’ first point of error are also applicable here. Appellants’ second point of error is overruled.

In their third point appellants complain that the trial court’s comments before the jury in suppressing their rights to present objections and motions constituted a comment on the weight of the evidence.

We cannot sustain appellants’ third point. On the morning of the second day of the trial appellee offered portions of Dr. Wolfram’s records from his deposition. Counsel for appellants requested a short recess to discuss the report with his clients. The court granted the request with the admonition to “Hurry back, now.

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457 S.W.2d 146, 1970 Tex. App. LEXIS 2012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danziger-v-brandes-texapp-1970.