Vandegrift v. Taylor

Frederick B. Smillie, of counsel for defendant, presented a petition under the Soldiers’ and Sailors’ Civil Relief Act of October 17,1940, 54 Stat. at L. 1178, as amended, setting forth that defendant is in the military service and praying that the proceeding be stayed for the duration of the war and 60 days thereafter.

Plaintiffs have filed a responsive answer, in which it is admitted that defendant is in the military service.

The answer further avers that Mr. Smillie’s law firm represents the real party in interest, Mr. Taylor’s insurance carrier, that the case arose from an automobile accident, and that defendant has two available eyewitnesses who could be called in his behalf.

Plaintiffs agree to file a waiver of all amounts recovered above the insurance carried.

We have said several times that the Soldiers’ and-Sailors’ Civil Relief Act was not passed for the benefit of insurance carriers, and these companies should not be permitted to take advantage of its terms for the purpose of delaying or defeating just claims.

On the other hand, assuming that the insurance company is the real defendant, and we must so assume for our present purpose, plaintiffs should not be permitted to take an unfair advantage by forcing the case on to trial when a very material witness for the defense is unavailable for the best of reasons.

The situation calls for consideration and accomodation from both sides, to the end that justice may be done. Plaintiffs must accept delay as part of the fortunes of war, and the defense should make a sincere effort either by depositions, or leave, if possible, to speed the cause. We will, therefore, stay the proceedings for eight months from this date, in order to give the defense time to prepare for trial.

*109And now, February 23, 1943, the proceedings are stayed for eight months from this date, without prejudice to the right of further extensions upon cause shown.