Heck v. Anderson

12 N.W.2d 849, 234 Iowa 379, 1944 Iowa Sup. LEXIS 538

• Court: Supreme Court of Iowa
• Decided: February 8, 1944
• Docket: No. 46301.
• Status: Published

Opinions

Smith, C. J.

These three actions in the Dallas District Court, and a fourth brought in the Boone District' Court, all arose from the same automobile-truck collision involving a truck being driven by defendant John Devine and owned by defendant R. L. Anderson. Defendant Floyd Norman was riding in the same vehicle as a relief driver but was sleeping at the time of the accident.

The same attorneys represent the several plaintiffs in' the four actions. The attorneys for the three individual defendants are the same in each case. The pleadings in the four cases are identical so far as concerns the determination of this appeal. The applications of the three individual defendants for stay of proceedings were the same in each of the three cases involved here; the resistance thereto by the several plaintiffs and the court’s ruling thereon were identical in each.

Counsel for defendants, after the commencement of the actions, wrote plaintiffs ’ attorneys as follows:

“We represent the defendants in the above four cases. We are informed that one of the defendants, John Devine, who was the driver of the truck involved, will be soon entering the army. Tt may be he has already been inducted.

“If Mr. Devine has not been inducted in the army, we would like to take his deposition by stipulation of the parties for use in the trial of the above entitled cases at some time that will be convenient to yourselves, Mr. Devine and ourselves. If on the other hand he has already been inducted into the service or goes into the service before this deposition can be taken, we will have to ask the court for a continuance of the cases under the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, and the cases interpreting’ this act until such time as Hitler is licked. We have no thought of procrastination in this matter and would prefer to take the deposition of Mr. Devine by stipulation.

"Kindly let us hear from you relative to when this might be done.”

Plaintiffs’ attorneys replied promptly:

"Your letter of the 26th, Avith reference to the taking of the deposition by stipulation of Mr. Devine received. You may prepare a stipulation providing for the taking of the deposition of Mr. Devine by agreement.

"Would you have any objections to the deposition being taken in Perry or Boone? If you have, you name the place where you wanted to take it. I thought when I talked with Mr. Seaton it might be possible to have these cases disposed of without a trial. Do you know of our proposition of settlement ? In any event, send us the stipulation and we will sign it forthwith. ’ ’

Within a few days a written stipulation, captioned in each of the four cases, Avas entered into, the pertinent provisions of which are as folloAVs:

"It Is Stipxalated and Agreed by and between all of the parties to each of the abox^e named proceedings that the deposition of John Devine may be taken on oral interrogatories and' cross-interrogatories at the Webster County Court House, Fort Dodge, Iowa, on the 3rd day of September, 1942, at 10:00 o ’clock A. M. before Vernon L. Grant, Official Court Reporter, xvho is agreed upon as commissioner for the taking of said deposition, and said commissioner shall take down in shorthand the testimony given at the taking of said deposition, and thereafter transcribe the same and make an affidavit that said transcript is a true and correct transcript of said deposition.

"Thereupon said deposition may be offered and read in evidence at the trial of any one or all of the abov^e captioned cases with th& same force and effect as though a commission had been issued for the taking of said deposition in the manner and form as by statute provided in each of the said cases and as though all the formalities had been observed.”

The deposition of defendant Devine was taken pursuant thereto and later the case in the Boone District Court was tried. During a part of that trial defendant Dexdne was present in court under subpoena by plaintiff, not yet having actually departed for military service.

It appears from the attorney’s affidavit in support of the motion for stay that in the trial of the Boone county case evidence was given of alleged admissions made by defendant Devine at the scene of and shortly after the accident; that defendants had- no knowledge of these claimed admissions at the time Devine’s deposition was taken and no reference thereto was made in his deposition, either by way of denial or explanation; and that it is reasonable to expect similar evidence will be offered by plaintiffs in the cases involved in this appeal.

Counsel for plaintiffs, by affidavit in resistance, say that defendant Devine was in the courtroom when the evidence of his admissions was offered in the Boone county case; that notwithstanding his availability at that time as a witness he was not put on the stand by defendants, but that they only used defendant Norman as a witness to deny such evidence.

Defendants’ application for stay of proceedings is based upon the fact that defendant Devine “has been inducted into the armed services of the United States * * * and is now in the military service * * * and unable to leave his post to attend the trial of this cause or the preparation thereof for trial.” It does not expressly purport to be made for his sole benefit but it prays “that all actions and proceedings in this court * * * be stayed.” It is in no sense a motion for continuance under the Iowa statute then in force.

The trial court sustained the application generally. The result of that ruling would, of course, be to prevent prosecution of the cases against the nonservice defendants as well as against the one in service. Plaintiffs ask that the decision of the district court be reversed generally and the cases be remanded for trial against all defendants.

We cannot agree to either result. A clear distinction should be drawn between the rights, under the Soldiers’ and Sailors’ Civil Relief Act, of the defendant in military service, and the situation of the other defendants. A failure to make such distinction would inevitably lead to confusion and injustice in many subsequent cases, as it would certainly do in the instant case.

I. The Act of Congress, known as the Soldiers’ and Sailors’ Civil Relief Act of 1940, is expressly designed “to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States, in order to enable such persons to devote their entire energy to the defense needs of the Nation.’’ 54 Stat. at L., section 100, 50 U. S. C., section 510. (Italics supplied.)

There is no suggestion in any part of the act that it is intended to protect the interests of any other person. 54 Stat. at L., section 101 (1), 50 U. S. C., section 511 (1), explicitly provides:

“The term ‘persons in military service’ * * * as used in this Act, shall include the following persons and no others (Italics supplied.)

54 Stat. at L., section 201, 50 U. S. C., section 521, says:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintift] 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.” (Italics supplied.)

It is too clear for argument that the interests of the soldier only are to be considered and that we must assume that his codefendants joined in the application on his behalf alone. Language could not be clearer than the words of the act itself, but see; Jones v. State, 205 Ark. 806, 171 S. W. 2d 298; State ex rel. Frank v. Bunge, 16 Wash. 2d 358, 133 P. 2d 515.

II. Now, it is equally clear that the right of the so'flier to a stay undo- the act does not depend alone upon his status as a material or important witness. The courts are jealous in defense rf the right of a litigant to be present at the trial of his own ease. We have held that the right should not be denied him unless for weighty reasons. In re Estate of Rogers, 226 Iowa 183, 283 N. W. 906; In re Estate of Townsend, 122 Iowa 246, 97 N. W. 1108.

“ ‘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.’ ” Hellberg v. Warner, 319 Ill. App. 117, 124, 48 N. E. 2d 972, 975.

In the Rogers case, supra, 226 Iowa 183, 186, 283 N. W. 906, 907, we quoted with approval from Jaffee v. Lilienthal, 101 Cal. 175, 35 P.636:

“ ‘It is the right of parties to be present at the trial of their eases. This right may be waived, and should be held to be waived, where the absence of the party is voluntary, and under circumstances which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself. ’ ’ ’

Certainly it cannot be said in the instant case that the interests of defendant Devine are properly safeguarded by a deposition taken in advance of trial, without knowledge of situations that might arise which he and he alone must be able to meet.

III. We have set out the correspondence between the attorneys, pursuant to which the stipulation was entered into and the deposition of defendant Devine taken in view' of his imminent induction into the Army. It is contended by plaintiffs that defendant Devine, by reason of tlie taking of tbis deposition, waived his right to a stay under the act, and, by inducing plaintiffs’ counsel to consent to the taking of the deposition, estopped himself to assert any right to such stay.

All three defendants were represented by the same counsel. The taking of the deposition was a wise and proper precaution on behalf of those other defendants who were not entitled to a stay under the act. No consent of plaintiffs or their attorneys was necessary to be obtained for the purpose. The statute then in effect would have enabled it to be taken upon notice or by commission. Code of Iowa, 1939, sections 11358, 11359. See, now, Iowa Rules of Civil Procedure, Rule 140. Plaintiffs were not induced to change their position or yield any advantage. No element of contract or estoppel was present. It is not uncommon for attorneys to co-operate courteously in such matters and do by stipulation what they could have done or could have been compelled to do without stipulation. We have never before heard it contended that by so doing they waived any right of their client or estopped their client from asserting any right he would otherwise have had, and we do not think this subsequent application for stay involved any breach of faith between counsel or parties.

Events have emphasized the importance to defendant Devine of the right to be present at and participate in the trial of his own ease. Defendant’s counsel, in the Boone county trial, when confronted by what they claim was unexpected .evidence of alleged admissions by Devine immediately after the accident, elected to depend on a denial by defendant Norman alone, though plaintiffs claim Devine was then still available as a witness.

It is reasonable to assume similar testimony of the alleged admissions will be offered on the trial of these Dallas county cases. Other now unforeseen situations may arise. We cannot say that what was done or left undone on behalf of Devine on the trial of the case in Boone county affects his right to be present at the trial of the cases still pending.

He was the driver of one of the vehicles involved in the accident. Statements made by him are admissible against him— in fact, unless a part of the res gestae, they are admissible against him alone. Presumably, he knows more about the facts than the other defendants can possibly know. The Soldiers’ and Sailors’ Civil Relief Act was conceived for his benefit. It imposes upon the court the duty to grant him a stay unless “in the opinion of the court” his ability to conduct his defense is not materially affected by reason of his military service.

We are abidingly convinced the trial court wisely exercised its discretion so far as concerns a stay of the proceedings as against defendant Devine.

IY. There still remains to be considered the status of the case as against the other defendants. The application asks -for a stay of all proceedings. The order granting it can be sustained as to non,service defendants only if, and so far as, necessary to protect the interests of the service defendant.

54 Stat. at L., section 204, 50 U. S. C., section 524, of the act provides:

“Where the per.-on in military service is a codefendanl with others the plaintiff may nevertheless by leave of court proceed against the others. ’ ’

The appellate court of Illinois, first district, second division, had occasion to consider this language in a case that involved joint liability of defendants, as heirs, for the debts of their ancestor. Hellberg v. Warner, supra, 319 Ill. App. 117, 135, 48 N. E. 2d 972, 979. In that case the appellate court, in upholding the decision of the lower court granting a stay, said:

“Prom an exámination of the pleadings and the evidence in the instant case we think that the trial court might well have concluded that the soldier, in order to fully protect his interest in the property, should have the right to be present and take part in all of the proceedings. ’ ’

In other words, the stay was granted as to all defendants, but it was done for the benefit and upon the application of the defendant who was in service. It was upon a showing that Ms interests would suffer if the case proceeded against the codefend-ants.

We conceive that to be the only construction that can be placed on the act. Tt. is doubtful if any case can be found that bolds the" legislation can be invoked for the benefit of any party except the person in service. In all cases that have been called to onr attention, in-which complete stay was granted to all defendants and not to the serviceman alone, there was some reason in law or fact why it could be said the interests of the serviceman would be affected by judgment against his codefendants or that he was a necessary party to the continued litigation against them.

In Griswold v. Cady, 27 N. Y. S. 2d 302, the trial court granted stay to both defendants because they were joint owners of the car involved in the accident and their liability was joint.

In Lanham v. Cline, Idaho, 44 F. Supp. 897, the court stayed proceedings because it held the interests of the defendant in service could not be adequately protected.

In Ilderton v. Charleston Consol. Ry. & Lighting Co., 113 S. C. 91, 101 S. E. 282, a continuance, under the Soldiers’ and Sailors’ Civil Relief Act of 1918, 50 U. S. C., sections 101-165, was granted because an employee, then in military service, whose alleged negligence was the basis of the action, might be liable over to defendant if judgment against defendant were allowed to stand.

No doubt there are other cases illustrative of this proposition.

There is no .showing here that the serviceman would be prejudiced by a trial of the case against his codefendants if the stay is granted as to him. In an early decision, this court held the respective situations of a soldier defendant and his non-service codefendant to be distinguishable under a state statute quite similar to the Federal Act we are considering. Lucas v. Cassady, 12 Iowa 567. In that case the one defendant was granted a continuance because of his military status; the other was denied a continuance because his application was filed too late under the general statute relating to continuances.

The later case of Butler, Keith & Co. v. McCall & Sypher, 15 Iowa 430, decided under a somewhat • different statute, held that because defendants were sued as a firm a continuance as to the defendant in service would necessarily operate as a continuance for all.

Back of the undoubted solicitude shoAvn in this act for the interest and welfare of the man in service are the “defense needs of the nation.” While the man is the immediate bene-fieiary, the whole theory of and justification for the legislation is concern for the public, interest. The court.should rigorously uphold the individual’s right, not merely because of his sacrifices and service but because of the nation’s interest in maintaining the highest possible degree of effectiveness in the performance of that service. The stay as to the defendant in service should not be denied upon any strained and technical theory of waiver and estoppel; nor should plaintiffs’ right to proceed against nonservice defendants be interfered with unless such interference is justified under our procedural rules for granting continuance, or unless it appears the interests of the service defendant would be prejudiced by trial, in his absence, of the action against his codefendants.

We affirm the decision of the district court granting a stay of proceedings as against defendant John Devine; and we reverse it as to the other defendants but without prejudice to their right, if they so desire, to make such showing for a continuance as they can under our Iowa Rules of Civil Procedure. —Affirmed in part; reversed in part.

Hale, Mulroney, Mantz, and Wennebstbum, JJ., concur. Bliss, Oliver, and Gareield, JJ., dissent. MilleR, J., takes no part.