Bowsman v. Peterson

• Citation: 45 F. Supp. 741
• Decision Date: 22 May 1942
• Docket Number: No. 280 Civil.,280 Civil.
• Parties: BOWSMAN v. PETERSON.
• Court: U.S. District Court — District of Nebraska

45 F. Supp. 741

BOWSMAN v. PETERSON.

No. 280 Civil.

District Court, D. Nebraska, Omaha Division.

May 22, 1942.

Ray Licklider, of Council Bluffs, Iowa, and Lee & Bremers, of Omaha, Neb., for plaintiff.

Reed, Ramacciotti & Hruska, of Omaha, Neb., for defendant.

DELEHANT, District Judge.

In an action to recover judgment for personal injuries and property damage allegedly resulting from an automobile collision, the defendant, upon written motion, supported by affidavits, seeks a stay of proceedings under the provisions of the Soldiers and Sailors Civil Relief Act of 1940, 50 U.S.C.A.Appendix § 521 et seq., for the period of his military service in the United States Army into which he has been inducted since the institution of the suit, and for three months thereafter.

Counsel for the parties have submitted the issue to the court by oral argument. Without neglecting the possibility that recourse to the indulgence of the act may be available, and actually had, in many instances where the legitimate protection of the person in the country's service is more apparent than real, the court is convinced that the stay must be allowed; and the motion is, therefore, being sustained.

It has been said that, ordinarily, "to be a sufficient ground for a continuance, it must appear that the absence of a party is unavoidable and not voluntary, that the party's presence is necessary, that the application is made in good faith, and that the party will be able to attend at some reasonable future time." 17 C.J.S., Continuances, § 27, p. 210 (see also 9 R.C.L. 551, Title Continuances Sec. 8).

In this instance, the inevitability of absence must be affirmed upon the premise of the national emergency, irrespective of the basis of the defendant's induction into the military service. The necessity of the presence of a party at the trial of a civil action for damages against him is admittedly not absolute, but it is at least reasonable. Within due limitations, he ought to be allowed to testify personally before the jury rather than through the notoriously indifferent medium of deposition. He should be allowed to scrutinize the jury list, to confront the jury as it is empanelled to observe the responses of its members on the voir dire examination, to make suggestions and have them and his preferences and his possible relation to the jurymen considered, in the very important step of peremptory challenges. He should, if reasonably possible, have the opportunity to be personally before the court and the jury during the entire progress of his trial, manifesting his interest in its event and allowing those charged with the burden of decision to observe him, either for his advantage or to his possible detriment. The good faith of the present application is not seriously in question. As to the defendant's probable attendance upon trial "at some reasonable future time", the court, in the current circumstances, will abstain from clairvoyance; but will give the applicant the full benefit of any uncertainty upon the point.

So, even in the absence of a controlling statute, the court would be disposed to grant some indefinite and discretionarily terminable continuance upon the defendant's request. Both upon considerations of general judicial discretion and on the basis of precedent such indulgence may be supported.

But here the statute seems to be imperatively controlling both as to the necessity for the stay, 50 U.S.C.A. Appendix § 521, and for practical purposes, as to its duration, 50 U.S.C.A.Appendix § 524.

By Sec. 524, it is provided that "Any stay of any action * * * ordered by any court under the provisions of this Act may, except as otherwise provided, be ordered for the period of military service and three months thereafter or any part of such period * * *". It is true that the language is permissive. But it is likewise...