GULF OIL CORPORATION, a corporation of the State of Pennsylvania, and Edward F. Wolfe, Jr., Defendants Below, Appellants,
Mary F. SLATTERY and William F. Slattery, Plaintiffs Below, Appellees.
Samuel R. Russell, of Morford, Young & Conaway, Wilmington, for appellants.
David B. Coxe, Jr., of Coxe, Booker, Walls & Cobin and Harold Shaffer, of Keil, Shaffer & Keil, Wilmington, for appellees.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and DUFFY, Judge, sitting.
SOUTHERLAND, Chief Justice.
Plaintiffs below, Mary F. Slattery and William F. Slattery, her husband, brought suit to recover damages for personal injuries to Mrs. Slattery, sustained in an automobile collision. The facts are these:
On February 9, 1959, Mrs. Slattery was riding in an automobile operated by her son. The car stopped at the intersection of South Market and A Streets, Wilmington. While stopped it was struck from the rear by a tank truck of the [53 Del. 506] defendant Gulf Oil Corporation, operated by the defendant Wolfe. Mrs. Slattery was knocked unconscious. She was taken to the hospital, and was examined and released. Four days later she visited an osteopathic physician, Dr. Davis, who diagnosed a whiplash injury to the neck. He treated her many times during 1959. In August he found her much improved but not completely recovered. During this period she was also examined by a neurologist and by an orthopedic surgeon. They found no indication of permanent physical disability.
In July, 1960, she was examined by Dr. Jerome Kay, a psychiatrist. His diagnosis was that Mrs. Slattery was suffering from a 'traumatic neurosis', i. e., a form of nervousness in which an emotional shock appears to be the cause of the symptoms. A whiplash injury is especially apt to develop such symptoms. This neurosis is in no sense a form of insanity, but a feeling of tenseness, sometimes accompanied by physical symptoms such as headaches, vomiting, and so forth.
Mr. and Mrs. Slattery brought suit to recover damages resulting from her injuries. Gulf admitted liability, and the case was tried before the court and jury on the issue of damages only. The jury returned verdicts of $15,000 and $2,500 in favor of Mrs. Slattery and Mr. Slattery respectively. The defendants appeal. They assert five grounds of error.
I. Refusal of defendants' motion for a continuance.
After defendants had learned of Dr. Kay's diagnosis of traumatic neurosis, they obtained an order for an examination of Mrs. Slattery by Dr. M. A. Tarumianz. Dr. Tarumianz examined her on November 8, 1960, and gave to counsel a report of his
findings. His diagnosis was that she was suffering from 'post traumatic anxiety state'. His recommendations indicate that he took a less serious view of Mrs. Slattery's condition than that taken by Dr. Kay. At all events we shall assume that his testimony would have been material to the issue tried.
[53 Del. 507] The trial was scheduled for November 14th, but was postponed to the December Term. It was then scheduled for trial on February 13, 1961. On January 17th defendants' counsel learned that Dr. Tarumianz planned to be out of the country from January 25th to April 1st. On January 19th he moved for a continuance, annexing to his affidavit a copy of the doctor's report. The motion was heard on January 25th and was denied without opinion. Defendants then asked for an amendment to the order providing that the affidavit would be admissible at the trial. This motion was denied. The defendants did not seek to obtain an examination of Mrs. Slattery by any other psychiatrist, and went to trial without medical testimony.
Defendants assail the trial court's rulings on two grounds: (a) that refusal of the continuance was an abuse of discretion; and (b) that in any event the affidavit should have been ruled to be admissible evidence.
Superior Court Rule 40(d), Del.C.Ann. provides:
'(d) Continuance; Absence Of Material Witness. Every motion for continuance upon the ground of the absence of or unavailability of a material witness shall be filed as soon as said absence or unavailability becomes known and shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts which he expects to prove by such witness, the efforts made to procure his attendance, and the date when the absence or unavailability of the witness became known. If it be stipulated by the opposite party, that the witness if called would testify as set forth in the affidavit, the court, in its discretion, may refuse the motion, and under such circumstances, the affidavit may be offered in evidence at the trial.'
(a) The affidavit filed by counsel set forth at length the matter to be proved by the doctor and its materiality. It did not, however, set forth any 'efforts made to procure his [53 Del. 508] attendance', as required by the rule. There was no showing of the issuance of a subpoena--an almost indispensable requirement for a continuance under the former Superior Court practice. See Woolley on Delaware Practice, § 629. Nor was any attempt made to take the doctor's deposition. Defendants elected to take the chance of the court's ruling on a motion for continuance rather than to take the precaution of taking a deposition.
Since defendants failed to show the diligence required as the foundation for the requested continuance, it must follow that the trial judge did not abuse his discretion in refusing it.
Defendants cite some authority for the rule that it is an abuse of discretion to deny a continuance 'where the application complies with every requirement of the law * * * and the evidence is material and due diligence is shown'. 17 C.J.S. Continuances § 46, p. 223. To the same effect is Bradley v. Poole,187 Va. 432, 47 S.E.2d 341. These ...