Mrs. Rose Behar, Appellant, v. Neil M. Jenkins, Appellee, 309 F.2d 160 (5th Cir. 1962)

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U.S. Court of Appeals for the Fifth Circuit - 309 F.2d 160 (5th Cir. 1962)

October 23, 1962

Bill Allen, Houston, Tex., for appellant.

Ralph S. Carrigan, Houston, Tex., Baker, Botts, Shepherd & Coates, Richard B. Miller, Houston, Tex., of counsel, for appellee, Neil M. Jenkins.

Before HUTCHESON, WISDOM and GEWIN, Circuit Judges.


This appeal arises out of a suit for damages under the Texas Wrongful Death Act brought for the death of Albert Behar and for injuries sustained by his wife, Rose Behar, the appellant herein. Such death and injuries resulted from an automobile collision at an intersection in Houston, Texas on April 5, 1960, between the automobile being driven by Mrs. Behar and the automobile being driven by Neil Jenkins, appellee. The intersection was controlled by a traffic light. The case was submitted to the jury on special interrogatories and the jury found the issues in favor of Neil Jenkins, appellee.

The only point raised by Mrs. Behar on this appeal is that the trial court abused its discretion in refusing to grant a continuance at appellant's request so as to permit the appearance and testimony of an additional rebuttal witness for the appellant. The witness, Glenn McCarthy, had not been subpoenaed, although the attorney for Mrs. Behar had been given an opportunity to have him subpoenaed the previous day. We conclude from a review of the record that there has not been a sufficient showing that this witness' testimony was material to the extent that it would have changed the verdict of the jury, if received. The testimony of the witness would have been cumulative and the granting of a continuance was within the sound discretion of the trial court. We conclude that there was no abuse of this discretion under the facts and circumstances of this case. DeVargas v. Brownell, 5 Cir., 1958, 251 F.2d 869; Peckham v. Family Loan Company, 5 Cir., 1959, 262 F.2d 422, cert. den., 361 U.S. 824, 80 S. Ct. 70, 4 L. Ed. 2d 68 (1959).

The judgment is