Ulmer v. Mackey

• Decision Date: 21 September 1951
• Docket Number: No. 15263,15263
• Citation: 242 S.W.2d 679
• Parties: ULMER v. MACKEY.
• Court: Texas Court of Appeals

Page 679

242 S.W.2d 679

ULMER v. MACKEY.

No. 15263.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 21, 1951.

Rehearing Denied Oct. 12, 1951.

Dawson, Jones, Parish & Fillmore, of Whichita Falls, for appellant.

Kearby Peery, of Wichita Falls, for appellee.

HALL, Chief Justice.

This appeal is from a judgment of the district court of Wichita County, entered in an automobile collision case between appellee A. E. Mackey (plaintiff below) and appellant Carl Joseph Ulmer (defendant below).

The case was tried to a jury and from its findings the trial court rendered judgment for appellee in the sum of $3,000 for personal injuries and $900 expenditures for hospital and medical services.

The substance of appellant's seven points is that the court erred in: (1) overruling appellant's motion to have proceedings in this case stayed until his military service would not materially affect his conduct of the case; (2) severing appellant's cross action, because the identical facts and issues therein were involved and litigated in appellee's cause of action; (3) permitting appellee's witness to testify that appellee had complained of pain since the alleged accident; (4) refusing to permit appellant's absence to be explained of his whereabouts at the time of trial; (5) permitting appellee's attorney, over appellant's objection, to inject the inference that appellant was covered by liability insurance; (6) permitting appellee to argue the absence of appellant as a presumption against him; and (7) arbitrarily excusing jurors and permitting the district clerk to excuse jurors so that appellant did not have the benefit of drawing the jury from the panel.

The trial court overruled appellant's motion to continue the case because of his untimely absence while in the armed forces of the United States, under section 521 of Title 50 U.S.C.A.Appendix, setting up grounds that his absence from the trial would materially affect his conduct of the defense of his case and prosecution of his cross action which he had filed against appellee.

The undisputed facts show appellant was stationed with a United States combat air force in Korea and it was impossible for him to be present at the trial.

Appellee contends that the trial court did not err in overruling appellant's motion for continuance, because, first, both the deposition of him and his wife had been taken; second, he was merely a nominal defendant in the case and the filing of his cross action was only to lay a predicate for a further continuance; and third, appellee would hold appellant harmless as against a judgment in excess of the limit of his indemnity insurance policy.

Under the facts in this case we are compelled to disagree with appellee's contention. In the first place, the judgment for $3,900 is against appellant personally. His insurance company may or may not be solvent at the time it is called upon to pay a judgment in this cause. Under the terms of the policy appellant was to assist in effecting settlements, securing, giving and obtaining evidence and to assist in the conduct of the trial. The failure of appellant to so cooperate and act in behalf of his defense might force him to prosecute his claim against said company.

Appellant's inability to be present at the trial naturally prevented him from performing under his contract with his insurance company. The mere absence of a defendant in an automobile accident case could be construed by a trier of the facts that insurance was involved. For instance, in this case the jury found that appellee was entitled to past, present and future medical and hospital fees in the sum of $2,000, when the evidence only revealed that he was entitled to $900. The contents of the Act evidence that during the period of such service or within sixty days thereafter all actions or proceedings in any court shall be stayed unless the opposing side shall clearly convince the trial court by substantial evidence that the defendant's ability to prosecute or defend is not materially impaired by his absence while in the military service. It is recognized throughout the courts of continental United States that the trial court has wide discretion in determining such issue, but it is also pertinent to note that abuse of such discretion by the trial court is reviewable by the appellate court.

We are aware of the fact that the most common injury that may be sustained by a party in a civil case is to have a money judgment rendered against him. Appellee insists that he should not be subjected to a long and undertermined delay in the prosecution of his cause of action against appellant. Such longevity of time will also be suffered by appellant in prosecuting his cross action against appellee.

We have carefully read the testimony and cannot say as a matter of law that appellee should recover judgment against appellant. Neither can we determine that appellant's...