Gross v. Williams, 12981.

• Decision Date: 26 April 1945
• Docket Number: No. 12981.,12981.
• Citation: 149 F.2d 84
• Parties: GROSS v. WILLIAMS et al. (COMMERCIAL STANDARD INS. CO., Intervener).
• Court: U.S. Court of Appeals — Eighth Circuit

149 F.2d 84 (1945)

GROSS v. WILLIAMS et al. (COMMERCIAL STANDARD INS. CO., Intervener).

No. 12981.

Circuit Court of Appeals, Eighth Circuit.

April 26, 1945.

William H. Tombrink, of St. Louis, Mo. (Bert E. Strubinger, H. P. Tudor, and Strubinger, Tudor & Tombrink, all of St. Louis, Mo., and Harrell Harper, of Ft. Smith, Ark., on the brief), for appellant.

Bruce H. Shaw, of Ft. Smith, Ark. (G. C. Hardin and J. Clib Barton, both of Ft. Smith, Ark., on the brief), for appellees Albert Williams and Johnnie Faulkner.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The appellant, Gross, appeals from judgments against him in an action for damages growing out of a collision between his car and another, which occurred in Fort Smith, Arkansas, on August 12, 1943. In the District Court the appellees, Williams and Faulkner, obtained judgments against Gross for personal injuries sustained by them, and a judgment in their favor on the cross-complaint of Gross for damages to his automobile; and the Yellow Cab Transit Company obtained a judgment in its favor on the third party complaint of Gross, also for damages to his car. The grounds on which reversal of the judgments is sought are (1) error of the court in refusing appellant's requested instructions on the issue of appellees' contributory negligence and in the charge given by the court on the same question, (2) error in denying appellant's motion for a stay of the action based on the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix § 501 et seq., and (3) error in the denial of appellant's motion for a continuance because of the absence of witnesses.

The appellant is a sergeant in the Army of the United States. At the time of the trial appellant was on duty at Camp Campbell, Kentucky. At the time of the accident out of which this litigation arose, the appellant, then stationed at Camp Chaffee, near Fort Smith, Arkansas, was driving his car in Fort Smith, accompanied by a Miss Boatright and William Green, also a sergeant in the Army at Camp Chaffee. The appellees, Faulkner and Williams, were employees of the Yellow Cab Transit Company, a corporation operating taxicabs in Fort Smith. Faulkner, accompanied by appellee, Williams, and a Mrs. Martin, was driving the taxicab which collided with appellant's car. Faulkner and Williams sustained serious personal injuries, and both cars involved in the collision were damaged.

Faulkner and Williams brought suit in the State court on September 21, 1943, while appellant was still at Camp Chaffee. On October 13, 1943, the action was removed to the Federal District Court on the ground of diversity of citizenship. The motion to stay proceedings under the provisions of section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix § 521, was filed by appellant on the 30th day of November, 1943. At the same time, appellant filed his answer, a counterclaim for recovery of damages to his car, and the third party complaint seeking a judgment against the Yellow Cab Transit Company for damages to his car.

No action was taken on the motion to stay proceedings until January 7, 1944. The court passed the motion for further hearing, which was had on April 10, 1944, when the motion for the stay was denied, and the case set for trial on May 9, 1944. In his motion for a stay of proceedings the appellant set up the facts concerning his military service; alleged that at the time of the motion he was on duty at some point that could not be revealed, but which was not in close proximity to the court; and asserted that because of his military service he would be unable to appear at the trial of the action at any time during his military service. He alleged that by reason of these facts he was prevented from making the necessary preparation for the trial of the action, from properly conducting his defense and prosecuting his counterclaim and the third party claim. He asked that the action be stayed during the period of his military service. In his deposition, taken by consent at Camp Campbell on the 28th day of March, 1944, appellant gave his version of the cause of the accident, and stated that leave of absence to attend the trial had been refused by his Company Commander.

In denying appellant's motion for a stay, the court found that appellant "is a member of the armed forces of the United States * * * at Camp Campbell, Kentucky, and that he is now unable to be present and in all probability will not be present at the trial of this cause because of his services in the said armed forces;" that the two persons riding in appellant's automobile at the time of the accident "are or may be available as witnesses at the trial by the exercise of diligence" on the part of appellant's attorney; that the appellant "has testified fully and frankly by deposition now on file"; and that the ability of appellant "to conduct his defense is not now and will not be materially affected by reason of his military service." The court continued...