# Johnson v. Johnson > California Court of Appeal · June 26, 1943 · 59 Cal. App. 2d 375 URL: https://www.frixlaw.com/law-library/cases/9549512 ## Case - **Full name:** GUY JOHNSON, Respondent, v. ALLAN JOHNSON, Appellant - **Court:** California Court of Appeal - **Decided:** June 26, 1943 - **Citations:** 59 Cal. App. 2d 375; 139 P.2d 33; 1943 Cal. App. LEXIS 329 - **Precedential status:** Published - **Opinion:** Dissent by Ward - **Judges:** Peters, Ward - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549512 ## Opinion text WARD, J. I dissent. In effect, as applied to the facts of the case, the majority opinion as I read it, holds (1) that a trial court may arbitrarily determine that an insured has no interest in the outcome of litigation arising out of a personal injury action instituted against him if insured against liability; (2) that a defendant in such action whose reputation for morality and sobriety is involved, who, in a deposition and a statement to a municipal or county officer, has made conflicting statements as to details, may not by reason of military service be granted a continuance of a trial for the purpose of explaining apparent discrepancies in such statements. The complaint .was filed twelve days after the accident, and the answer four weeks later, at' which time the plaintiff served and filed notice of motion to set the cause for trial. On December 12, 1941, the court set the cause for trial on January 26,- 1942. .On December 18, 1941 the deposition of the defendant was taken. It appears that about this time the defendant anticipated the probability of a call to military service from his draft board. On January 16, 1942, defendant moved the court for an order staying proceedings upon the ground that he was then in the military service, furnishing supporting affidavits in that regard. This motion was denied. On the last mentioned date defendant also moved the court for a continuance of the case for trial, but this motion was not ruled upon at the time of denying the stay, but subsequently, on the day of trial, was formally denied. On January 23, 1942, a regularly noticed motion for a *394 stay of proceedings, based upon affidavits that the defendant was then in the United States Navy and at that time stationed in San Francisco, was heard. One of the affidavits was to the effect that defendant’s commanding officer had been interviewed and had stated that it would be impossible to release Allan Johnson from duty on the date set for trial; another affidavit, by defendant, stated that he would be unable to attend, and prayed that the case be continued until such time as he is released from the navy. At the previous hearing it appeared that defendant carried insurance. At the conclusion of the second hearing the motion was denied. Among other reasons given, the court stated: “It is my view, inasmuch as the defendant is not at all personally interested in the outcome of the case, that the Court could not continue the matter under the Soldiers’ and Sailors’ Relief Act, or grant the motion on the ground of lack of witness—the inability of the witness to attend. I don’t think I can grant the motion on that ground of the ease, because there is no showing here that he cannot attend. I will have to deny the motion. ’ ’ The motion was renewed on the morning of the first day of the trial, based upon the previous record. The court stated: “The motion for continuance and suspension of proceedings will be denied.” Appellant contends that the first ground given for the denial of the motion is based upon the fact that defendant was insured. Respondent does not contradict this statement. Section 521 of the Soldiers’ and Sailors’ Civil Relief Act quoted in the majority opinion should be construed to effect its purpose, the protection of those in the armed service to the extent of permitting a postponement until the soldier or sailor, without restraint or restriction, is able to present his side of a contested material issue. However, the section is addressed to the reasonable discretion of the trial courts of the nation, to determine whether a litigant will be prejudiced by proceedings held in his absence, and each case should be determined upon the particular facts and surrounding circumstances. In the exercise of such discretion, if the trial court denies a postponement, and it subsequently appears that the litigant or his guarantor or indemnitor is prejudiced by reason of the absence of the parties, a new trial should be granted. In Richey & Gilbert Co. v. Northwestern Natural Gas Cory.,-Wn.2d-, 134 P.2d 444, 451 , the court said: “The court in cases such as this one is obliged, at the outset, *395 to visualize the trial and the preparation of it, with a view to determining the effect of the defendant’s absence. It must be ready at any stage of the proceedings to change its decision and grant the stay if good reason therefor appears.” For this reason, on a motion prior to trial the section should be liberally but reasonably construed in favor of the soldier or sailor to protect his interest. (Jamaica Savings Bank v. Bryan, 175 Misc. 978 [ 25 N.Y.S.2d 17 ] ; 25 N.Y.S.2d 641 .) The section was not enacted particularly to protect insurance companies, though facts may arise to justify a continuance in favor of the insurance carrier upon the principle that a party in interest should not be forced to trial in the absence of a material witness (Craven v. Vought, 58 Montg. 15 , 4 Monroe L.E. 11, 55 York 173 ), or in the absence of a party to the action whose presence might materially affect the disposition of the case (Royster v. Lederle, 128 F.2d 197 ) and, accordingly, whose absence in either event might be prejudicial to a determination of the material issues involved. It does not appear from the record that the amount of insurance was adequate to meet the sum prayed for in the complaint. The majority opinion assumes to the contrary, or, at least, surmises that the verdict was within the amount of the face of the policy. This assumption or surmise is without evidentiary support. Neither the court nor plaintiff demanded a bond of the insurance company that a verdict in a specified amount would be paid. (Royster v. Lederle, supra.) In addition, an insurance company has the privilege and right to demand cooperation from the insured. If the latter is a resident of the county of trial, it may be assumed that he would be of assistance in the selection of the jury, at least to the extent of indicating veniremen who might be prejudiced against him. A party’s presence might have an effect upon the judgment or the amount thereof. (Royster v. Lederle, supra.) If a proceeding may be postponed upon the application of an insurance carrier for sufficient reason, it should also be delayed if the insured has a material interest in the outcome, whether that interest be financial or personal. In Tulley v. Superior Court, 45 Cal.App.2d 24 [ 113 P.2d 477 ], referring to section 510 et seq., this court said (pp. 30-31): “While it is true that the above-mentioned federal statute was passed subsequent to the commencement of the action in which petitioner is a defendant, it is an announcement of policy by the *396 lawmaking body that normally should be the exclusive judge of policy, as to what it considers reasonable and necessary under such circumstances. Under that statute, or independent of that statute, the trial courts possess ample powers to protect the rights of those in the military service of the United States. It is inconceivable that, in a proper case, the trial court, upon a proper showing, would not grant a reasonable continuance to'one engaged in military service to permit him to properly prepare his defense, and, if necessary, continue such case during the period of the defendant’s foreign service. If the trial court should abuse its discretion in such a case there exist ample remedies to control such abuse.” It is true that the decision by this court in that case referred to “foreign” service, but conditions might arise that would preclude the presence of a party at a trial even though he might be in the same county. As a matter of fact, if in foreign service the party would not be available. Congress has directed a policy in relation to litigants in military service. The administration thereof rests in the discretion of the trial court. Such discretion should be used reasonably, with due regard to the rights of each side. (Swiderski v. Moodenbaugh, 44 F.Supp. 687 .) It must be assumed that Congress gave mature consideration to the rights of those claiming damages in personal injury cases, and to the many contingencies that might arise, and the possible consequences that might result from delay in bringing causes to trial. A defendant, though protected in the matter of monetary liability on a judgment, is still interested in refuting charges, if possible, against his reputation, or charges of intoxication. An intoxicated person in the operation of an automobile may become “active and alert or stupid and dull.” (Frisvold, v. Leahy, 15 Cal.App.2d 752, 756 [ 60 P.2d 151 ].) Immediately after an accident statements may be made that under certain circumstances require explanation. Even a statement under oath may be contradicted or explained upon a trial. (Royster v. Lederle, supra.) In addition to the motion for postponement under the Soldiers’ and Sailors’ Civil Relief Act, supra, as previously stated, a motion for a continuance was presented and denied. An application for such continuance is ordinarily left to the sound discretion of the trial court. If bad faith appears, or the form and substance of the application for continuance is legally inadequate, denial of motions for continuance has *397 been upheld, but in many instances when the rights of a litigant have been jeopardized the reviewing court, in the interest of justice, has reversed the judgment. This motion, the first and only continuance requested, presented in proper form, could well have been granted in the interest of justice to give defendant, a material witness whose absence was reasonably explained, an opportunity to be present at the trial. Irrespective of the Soldiers' and Sailors’ Civil Relief Act, such has. been the determination of the reviewing courts in this state. (Jaffe v. Lilienthal, 101 Cal. 175 [ 35 P. 636 ] ; Carl v. Thomas, 116 Cal.App. 294 [ 2 P.2d 872 ]; Pacific Gas etc. Co. v. Taylor, 52 Cal.App. 307 [ 198 P. 651 ] ; Betts Spring Co. v. Jardine Mach. Co., 23 Cal.App. 705 [ 139 P. 657 ] ; Morehouse v. Morehouse, 136 Cal. 332 [ 68 P. 976 ]; Swayne & Hoyt v. Wells-Russell & Co., 169 Cal. 204 [ 146 P. 686 ].) If not independent of the federal act, certainly in conjunction with it, a continuance should have been granted. Under the act a stay or continuance may be granted for any period less than the period of military service (sec. 524). The majority opinion relies upon Boone v. Lightner, a very recent decision which does not appear officially at this writing to have been declared final. The majority opinion also cites Swiderski v. Moodenbaugh, 44 F.Supp. 687 and 45 F.Supp. 790 . On appeal in the Swiderski case, 45 F.Supp. 790 , it was assumed that the parties to the action in respectively requesting and refusing a postponement were playing a game. This brought forth the following statement by the court (p. 792) : “This court repudiates such a game and orders the cause set for immediate trial.” If appellant in the present action had been playing a game he should have come under the rule in the Swiderski case. Such facts do not here appear. There was no agreement to be bound by the amount of insurance carried by defendant; the date for trial was a date subsequent to defendant’s entry into military service, and there was no action taken by the insurance company to delay proceedings other than the application under the provisions of the Soldiers’ and Sailors’ Civil Relief Act, and appellant was acting in good faith in making the ordinary motion for a continuance. In the Boone case the same condition existed as in the Swiderski case. The petitioner .was playing a game. He was trifling with the court. When the numerous quotations from the Boone case, found in the majority opinion are considered, in view of other facts as set forth in the opinion of the Su *398 preme Court of the United States, the conclusion reached is understandable. Boone, a lawyer, and executor and trustee of his mother-in-law's estate, was charged with “losses caused by illegal management” of the fund. “He was then in military service of the United States as a Captain stationed in the office of the Under Secretary of 'War in Washington. . . . the same day the summons was served, he changed his ‘domicile and legal residence’ to Washington, D. C. . He pleaded at length facts to support his claim that he was no longer domiciled in North Carolina . . . Boone moved for a continuance to the 25th of May, 1942, his counsel, Roy L. Deal, stating that he expected soon to be called into service and would be unable to try the ease, and asking the continuance in order to give defendant ample time to employ other counsel. The request was granted, and that date peremptorily set for the trial. . . . Boone was not present, but counsel appeared for him to move for a further continuance under the Soldiers’ and Sailors’ Civil Relief Act. This motion was denied, counsel who had presented the motion withdrew from the case, and the trial proceeded. The verdict of the jury went against Boone; and judgment was entered that the trust was governed by the terms of the will, that Boone had been guilty of serious misconduct of the trust fund, and that he be held personally liable for the consequent loss to the trust fund of more than $11,000, and removed as trustee. . . . Boone had been able to get away from Washington to go to New York for the taking of depositions on two separate occasions. He had long notice of the trial date and the court had placed in the files of his Department its order showing the desirability of his presence at that time. Boone, being a lawyer and presumably knowing the gravity of the accusations against him might be expected to make some move to get leave to be present. If it were denied, he might be .expected to expose every circumstance of his effort to the court in his plea for continuance. . . . Most lawyers trained in the equity tradition of trustee fidelity would regard a trial of this kind as a serious emergency. Did he apply for a leave at all? The affidavit pretty clearly implied that he had not. ... No showing whatever was made as to any effort to obtain other counsel in the long interval allowed by the court for the purpose. This counsel was also stationed at Washington and said he ‘would not assume to ask for leave at the present time, so soon after having reported for duty. ’ On the trial date defendant was neverthe *399 less represented in court by local counsel ... be withdrew and declined to proceed further. . . . Counsel who had withdrawn from the trial argued the appeal in the Supreme Court of North Carolina. At all times since the action began defendant has also been represented by counsel from Detroit, Michigan. His inability to appear on the trial date was explained on the ground that he was 1 definitely engaged at the present time in the trial of cases at Detroit which will require his presence in Court there for approximately thirty days. ’ No affidavit from this coTinsel was produced, and no explanation is made as to how it came that other ‘cases’ were given priority over this in view of the long notice of the trial date and its importance to the client. In this Court, Boone is represented by his Detroit counsel and by Deal, the lawyer who withdrew from the case to accept a commission in Washington. Besides these, there also appear four other lawyers, none of whom are included in the five who have represented him at previous stages in the case. . . . The court was dealing not only with an individual but with a trustee, one charged with default in his duty, and with a fund which was said to be in jeopardy. Defendant in spite of his military service in Washington was continuing to administer the fund. The defendant was a member of the bar, and the charges struck at his honor as well as at his judgment. Instead of seeking the first competent forum and the earliest possible day to lay his accounts out for vindication, he sought to escape the forum and postpone the day. He was both present and represented by counsel when depositions were taken which establish his speculation with the trust funds in his personal margin account. We think the record amply supports the conclusion of the trial judge that the claim that military service would prejudice the conduct of his defense, was groundless, and that the absence of himself and all of his numerous and not uncompensated counsel on the day of judgment was dictated wholly by litigious strategy. . . . But in some few cases absence may be a policy, instead of the result of military service, and discretion is vested in the courts to see that the immunities of the Act are not put to such unworthy use. ’ ’ (italics added) Though it appeared that Boone was “playing a game,” “trifling with the court,” guilty of “litigious strategy,” the opinion was not unanimous. In the dissenting opinion by Mr. Justice Black the following well-considered and appropriate statement was made: “I believe that the clause under *400 consideration requires that an action against a person in military service must be stayed unless the trial judge concludes (a) that no personal judgment will result, and that the action will in effect preserve the interests of all the parties for the duration of the war; or (b) that the defendant is only a formal party; or (c) that the defendant need not be present for any purpose, either before, during, or after the trial, and that he will be adequately represented and has no need to testify or participate in any way; or (d) that the defendant’s military service does not preclude him from having ample opportunity to get ready for,- and to take his necessary part in the litigation. . . . The Court emphasizes that Boone is a member of the bar. But for the duration of the war, he is primarily a soldier, with a job to do which Congress intended should overshadow personal interests, whether his, or those of others who seek a personal judgment against him. ... He is required to devote himself to serious business and should not be asked either to attempt to convince his superior officers of the importance of his private affairs or to spend his time hunting for lawyers. The trial court should, at the very least, have inquired of the appropriate military authorities whether the petitioner could be granted ample leave to prepare his defense and be present for trial. If the Act does not require this, it serves little purpose. It may be argued that this petitioner, a man of knowledge and.experience, is as competent to ask his superior officer for leave as is the trial court; but the argument fails because the policy set here, no matter how many qualifications the Court tries to work into it, will shoot far beyond the confines of this case.” I am of the opinion that Mr. Justice Black is correct. Though Boone v. Lightner, supra, was not cited in argument by the litigants herein,, the majority opinion quotes freely therefrom. It fails, however, to be guided by the repeated admonition of Mr. Justice Jackson that each ease should be governed by the particular facts involved. In the majority opinion the holding with reference to -the lawyer-captain charged with misappropriation of money, is held applicable to a sailor who was unfortunately involved in an automobile accident. In the Boone ease there was an apparent effort made that Boone should never be forced to testify. In the present case the court was informed by the attorney representing the defendant that “if Allen Johnson is available whenever this case shall be tried, it is my intention, of course, to produce him as a witness.” *401 A litigant is entitled, if possible, to be present at a trial. In the present case the reputation of the defendant for morality and sobriety was at stake. A deposition made by him was introduced, but his absence precluded an opportunity to interpret statements contained therein or to explain the circumstances surrounding a statement made to the district attorney of the county shortly after the accident as to visits to certain places earlier in the evening. The insurance company was prevented from conferring with the defendant relative to the use of challenges to prospective jurors. This was important in view of the fact that defendant was a resident of the county, and his reputation as a visitor to certain houses indicated in the record as houses of ill-fame was an evidentiary matter. There is some evidence that he did not actually enter the particular places, and also evidence by a physician, called in by the police, who examined defendant immediately after the accident that he was not intoxicated. No charge of intoxication while driving or otherwise was placed against defendant. This likewise is important in view of the conclusion set forth in the majority opinion that the accident “was due to the liquor he had consumed.” The opinion does not hold that defendant was intoxicated, although that was one of the main contentions of plaintiff. The defense should have been afforded the right to present the defendant as a witness and thus permit the jury to determine from the character of his testimony and the manner in which he might testify the merits of the contentions of the respective parties. The presence of the defendant no doubt would have materially affected the disposition of the case. (Royster v. Lederle, supra.) It was an abuse of discretion to deny a continuance until ' it was demonstrated that defendant purposely enlisted to avoid the trial, or that he could have appeared notwithstanding his duty in military service. In my opinion the judgment should be reversed. A petition for a rehearing was denied July 26, 1943. Ward, J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied August 23, 1943. Schauer, J., voted for a hearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549512. Public record. Not legal advice.