Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 371
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§f&.] TEx. & PAc. R' Co. v. HABDIN. 371
?14'~~ ~ ~Opinion of the court.
taken, wired him to come to Dallas and see them in respect thereto.
:That said Jackson obeyed said message and went to Dallas, and by
Defendant's attorneys' advice, went on to Terrell to visit plaintiff
and examine his arm, hand and injuries. That said Jackson and
Allen, as physicians and surgeons, had treated plaintiff and his wife
for said injuries immediately after they were sustained, and for
some time thereafter. That detendant's attorneys notified said Jackson
that this cause was Jet for trial on the 24th day of this
month, and instructed and requested him to attend in person as a
witness for defendant herein, and said Jackson promised so to do.
That on the evening of Saturday, June 21, 1884, defendant's said
attorneys, in order that said Jackson might not fail to attend as such
witness on the trial of this cause, sent him another telegraphic dispatch
to be present on June 24, 1884, the day this cause was set for
trial. That in obedience to said dispatch, said Jackson, on yesterday,
the 24th of June, came as far as Terrell with the view
of attending this court as a witness in this cause. From that point
he notified defendant's claim agent, J. T. Brown, that he was
sick, suffering from dysentery. Defendant's said agent, Brown,
then notified him to come here to-day so as to be present at the
trial hereof, but thereafter said Brown was notified by telephone
that said Jackson had grown worse with his said ailment and had
returned to Fort Worth for medical treatment."
On this state of facts the court below may have held that the appellant
relied on having the witness present at the trial, and, therefore,
did not use such diligence to get his deposition as it might
have used. If so, we cannot say that such ruling, under the facts,
was erroneous.
If the clerk of the district court for Tarrant county had been
clothed with such powers as the articles of the statute before referred
to would have given to him, had the statutory method of taking
depositions been pursued, it may be, and is most likely, true, that
the deposition of the witness would have been taken.
The witness Jackson is shown to have been in charge of the appellant's
hospital at Fort Worth, and over him the appellant seems to
have exercised such control as enabled it to call him to Dallas, to
-send him to Terrell, and, but for his indisposition, to have secured
his attendance on the trial; and the court below may have held
that the exercise of such control as the appellant had over the witness
would have enabled it to get his deposition. The appellant
knew that his deposition had not been taken on June 18th; that the
cause had been set for trial on the 24th; yet no effort seems to have
been made between these dates to get his deposition.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/393/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .