The materiality of the witness' testimony, which was not controverted, must be considered as true. Thus, in ascertaining whether the trial court abused its discretion in overruling the application, the alleged facts along with the testimony taken on trial of the case must be considered. Ward v. Brown, Tex.Civ.App., 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex.Civ.App., 48 S.W.2d 437; United Employers Casualty Co. v. McCloud, Tex.Civ.App., 146 S.W.2d 247; 9 Tex.Jur., p. 760, sec. 83. In so doing, there can be no question as to the materiality of the alleged absent witness' testimony, particularly so in light of the pleadings and evidence in reference to the issues of appellee's contributory negligence.
"* * * that, in determining the materiality of the testimony sought from an absent witness and in ascertaining whether the trial court abused its discretion in overruling a first application for continuance which has not been controverted, an appellate court must not only look to and consider the facts alleged in such application, but it must take into consideration the testimony taken on the trial of the case. Ward v. Brown, Tex.Civ.App., 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex.Civ.App., 48 S.W.2d 437; 9 Tex.Jur., ยง 83, p. 760. "While ordinarily the granting or refusing of a motion for continuance rests within the sound discretion of the trial court, the exercise of this sound discretion is always subject to review, particularly when the statute with reference to applications for continuance has been, in every way, complied with, in which case there is no presumption that the court did not abuse its discretion.
Thus, in ascertaining whether the trial court abused its discretion in overruling the application, the alleged facts along with the testimony taken on trial of the case must be considered. Ward v. Brown, Tex. Civ. App. 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex. Civ. App. 48 S.W.2d 437; United Employers Casualty Co. v. McCloud, Tex. Civ. App. 146 S.W.2d 247; 9 Tex.Jur., p. 760, sec. 83. In so doing, there can be no question as to the materiality of the alleged absent witness's testimony, particularly so in light of the pleadings and evidence in reference to the issues of appellee's contributory negligence.
The settled rule of law in this state is that improper argument will require a reversal of the judgment if there is any reasonable doubt as to its harmful effects. Floyd v. Fidelity Union Casualty Co., Tex.Com.App., 39 S.W.2d 1091; Ward v. Brown, Tex. Civ. App. 122 S.W.2d 684; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946; Texas Indemnity Ins. Co. v. Allison, Tex. Civ. App. 75 S.W.2d 999; 41 Tex.Jur., p. 775, sect. 57. Improper argument by counsel is sometimes said to amount to the furnishing to the jury of outside evidence and is controlled by the same rules governing misconduct of the jury in considering evidence not placed before them under rulings of the court.
This is particularly true since our courts have uniformly held that, in determining the materiality of the testimony sought from an absent witness and in ascertaining whether the trial court abused its discretion in overruling a first application for continuance which has not been controverted, an appellate court must not only look to and consider the facts alleged in such application, but it must take into consideration the testimony taken on the trial of the case. Ward v. Brown, Tex. Civ. App. 122 S.W.2d 684; Haley Fisheries, Inc., v. Payne, Tex. Civ. App. 48 S.W.2d 437; 9 Tex.Jur., ยง 83, p. 760. While ordinarily the granting or refusing of a motion for continuance rests within the sound discretion of the trial court, the exercise of this sound discretion is always subject to review, particularly when the statute with reference to applications for continuance has been, in every way, complied with, in which case there is no presumption that the court did not abuse its discretion.