Davis Ex Rel. Davis v. Wyche

ScheNOk, L. This appeal poses the determinative question: Did the court err in entering, in its discretion, the order and judgment staying the trial of the action until the inability ■ of the defendant to conduct his defense by reason of his military service was removed? We are of the opinion, and so hold, that the answer is in the negative. The Soldiers’ and Sailors’ Civil Eelief Act of 1940, sec. 521, 50 TJ. S. O. A., the interpretation of which is involved in this appeal, reads: “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 thijs 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.” Oct. 17, 1940, c. 888, sec. 201, 54 Stat., 1181. The act provides that the court shall, on the application of a party to an action in the military service, grant a stay in the trial of such action, unless in the opinion of the court the ability of such party to conduct his case is not materially affected by reason of his military service. It was therefore mandatory upon the trial judge to grant the stay unless he was of the opinion that the ability of the defendant to conduct his defense was not materially affected by reason of his military service. “The Soldiers’ and Sailors’ Civil Eelief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” Boone v. Lightner, 319 U. S., 561, 87 Law Ed., 1587. Although the trial judge found as a fact, upon competent evidence, “that the ability of the defendant to conduct his defense is materially affected by reason of his military service” it was not necessary under the relief act that such finding be made, it being only necessary that the court be of the opinion that the ability of the defendant to conduct his defense be materially affected by reason of his military service. Boone v. Lightner, supra. It is the contention of the plaintiff that the defendant would not be prejudiced by a trial in his absence, since the defendant’s deposition has been taken and is on file. While it may be true that parties to actions *750 are sometimes forced to trial in tbeir absence, with only tbeir depositions to be relied upon, we do not concur with the contention that such a situation is not prejudicial to the party so forced. Every party has a right to be present at the trial of bis cause, and to be forced to trial without this right on account of absence due to military service cannot be said to be without material affect upon such cause, unless, as by the act provided, the court shall be of the opinion that such situation does not materially affect his ability to conduct his defense. In Bowsman v. Peterson, 45 Fed. Supp., 741, it is said: “Within due limitations, he (defendant) 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 impaneled 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 decison to observe him, either for his advantage or to his possible detriment.” Plaintiff contends that the insurance company is the real defendant in interest and seeks to ignore the defendant Wyche altogether so far as the trial is concerned. This contention is untenable, for the reason, among others, that the policy involved in this case provides that “no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.” In view of the trial judge’s finding of fact, based upon competent evidence, that the ability of the defendant to conduct his defense was materially affected by reason of his military service, and, in the exercise of his discretion, ordering and adjudging a stay in the trial of and a continuance of the cause until the inability of the defendant to conduct his defense by reason of his military service shall be removed, we are of the opinion that the judgment of the Superior Court should bo affirmed, and it is so ordered. Affirmed.