Royster v. Lederle, 9115.
| Decision Date | 03 March 1942 |
| Docket Number | No. 9115.,9115. |
| Citation | 128 F.2d 197 |
| Parties | ROYSTER v. LEDERLE, U. S. District Judge. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harold Goodman, of Detroit, Mich., for petitioner.
Vandeveer & Haggerty, of Detroit, Mich., for respondent.
Before SIMONS, HAMILTON, and MARTIN, Circuit Judges.
The petitioner, Dacia Royster, applied for a writ of mandamus to compel respondent, the Honorable Arthur F. Lederle, Judge of the District Court of the United States for the Eastern District of Michigan, Southern Division, to vacate and set aside his order of continuance entered in the case of Royster v. Ruggerio, 2 F.R.D. 429, pursuant to Section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1181, 50 U.S.C.A. Appendix § 521. We issued an order to show cause to which appropriate reply has been made supported by brief.
The facts are not in dispute and are substantially as follows:
On June 12, 1941, petitioner, Dacia Royster, a citizen of Michigan, commenced a suit in the United States District Court for the Eastern District of Michigan, Southern Division, against John Ruggiero, a citizen of Ohio. Petitioner sought in said action to recover from Ruggiero $10,000 as damages for personal injuries she claimed to have suffered when struck at Woodward Avenue in the City of Detroit, Michigan, by an automobile driven by Ruggiero, who was inducted into the military service of the United States about June 28, 1941.
At a pretrial hearing, respondent, over the objection of petitioner, ordered the cause continued until and including sixty days after Ruggiero's discharge from the Army. Petitioner seeks in this action to annul that order.
Ruggiero has a liability policy of insurance with the Buckeye Mutual Casualty Company under the terms of which he is saved harmless to the extent of $5,000 for injuries to any one person, and a maximum of $10,000 for injuries and damages arising out of a single accident to persons and property resulting from the operation of an automobile by him. The insurer agreed to defend any suit against the insured growing out of the operation of the automobile covered by the policy. At the time of the motion for a continuance, petitioner offered to look solely to the insurer for the payment of any judgment she might obtain in the action if the court denied the motion.
Petitioner was struck and injured by Ruggiero's car while she was standing in a street safety zone. He struck three other people at the same time and was arrested for reckless driving and tried for that offense in the Recorder's Court for the City of Detroit, Traffic and Ordinance Division, State of Michigan and testified at the trial that he saw none of the people who were struck by his car. He also testified it was a foggy, misty morning and that visibility was poor. He was found guilty of reckless driving and given a probated sentence.
At the time of her injuries, petitioner was employed as a linen finisher in a laundry and was earning approximately seventeen dollars per week. She was badly hurt and has not been able to resume her means of livelihood since the accident. She is married and her husband is employed at a nominal salary.
The question arises as to whether defendant Ruggiero in the original action was entitled to the continuance granted by respondent under the circumstances here present. Section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1181, 50 U.S.C.A. Appendix § 521, provides: "At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service."
The provisions of this Act were intended solely for the benefit of those in the armed services of the United States, but the Act does not provide a defense to actions against them. It only allows a postponement until such time as the defendant is unhampered by his military service to defend such actions. The object of the Act was to prevent injury to the civil rights of those in the armed services of the United States during that service in order that they would be free to devote all of their energies to the military needs of the Nation. Unless it is made to appear that the rights of the person in the service will be prejudiced by a proceeding against him, the Act is inapplicable.
This case presents a threefold aspect: First, as to the rights of the petitioner in the original...
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...Circuit Court of Appeals, and not bound by a decision of the Sixth Circuit, refused to follow the decision or the reasoning in Royster v. Lederle, supra. Certain facts give support to the result reached in decision in the Swiderski case, but the decision in the Royster case appears to us to......
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