Stalcup v. Ruzic

Appellee recovered a verdict and judgment of $15,000 against Stanton Lewis and S.S. Hamilton, a partnership, d/b/a The Clovis Transit Company, and James V. Ruzic, for injuries sustained by her while riding as a guest in an automobile owned and operated by Ruzic which collided with a bus leased and operated by the defendants Lewis and Hamilton.

James V. Ruzic, sole appellant, varying the order of presentation, contends, that (1) there was not sufficient evidence of acts or omissions on his part upon which to base a finding that appellee's injuries were intentional or caused by his heedlessness and reckless disregard of the rights of others; (2) the court erred in allowing counsel for appellee to ask each member of the jury panel on voir dire examination whether he or any member of his family owned stock or had any interest in the two named companies; and (3) the court erred in overruling his motion to stay the proceeding, thus forcing him to defend at a time when he was in Germany as a member of the United States Army.

The accident in question happened at the intersection of Seventh and Hull streets, at about 11:25 o'clock the night of February 4, 1946. Seventh street extends east and west and measures 56 feet 6 inches from curb to curb. Its center is paved 18 feet in width. On either side of the paved portion of the street lie four feet of oil surfacing and the rest up to the curb is dirt or caliche. It represents an extension through the City of Clovis of a federal highway known as Highway No. 60, which normally carries heavy traffic, especially between the business section of the city and the Army Air Base then nearby, lying to the west thereof. The area where the accident occurred was both business and residential in its makeup, each side of the highway being flanked with buildings consisting of residences, stores, tourist courts and gasoline stations. Hull street extends north and south and measures 30 feet from curb to curb.

At the time of the collision, appellant was driving his eight cylinder 1940 Oldsmobile sedan in an easterly direction on Seventh street, having with him at the time Merle Clements, sitting in the front seat, as also Lt. Frank Schooley and Theresa Stalcup, occupying the back seat. At the same time and on the same street, one Darlene Athey was driving codefendants' city bus, with three passengers aboard, in a westerly direction. The collision was caused by the left side of appellant's car catching the left front end of the city bus, causing the car to spin around and finally come to a stop against the curb. The headlights of both vehicles were burning. The driver of each vehicle saw the other approaching approximately three blocks away, and kept an eye on the other to the point of collision. They were fully aware of the presence of each other on the street for an appreciable time prior to the impact.

Appellant entered the city limits traveling at a high rate of speed, ranging between 65 and 90 miles per hour, in violation of both city and statutory speed laws. When within three blocks of it, he observed a city bus approaching from the opposite direction. Within 200 feet of same, the appellant applied his brakes, as the bus driver momentarily, as it seemed to him, entered his lane of traffic. The appellant released his brakes almost as soon as applied, believing himself to have clear passage, and still continued at the same high and dangerous rate of speed. When within about 30 or 40 feet of the bus, he again applied his brakes, suddenly, and collided with it, having thought it to be once more swerving into his lane of traffc as he testified. Actually the bus had already stopped a mere foot across the center line of the highway preliminary to executing a left-hand turn into Hull street. Testimony as to position of thebus on coming to rest after the collision, based on measurements made shortly thereafter, placing it 6 feet 10 inches across the center line of the street and in appellant's lane of traffic, and slightly over 33 feet east of the east boundary of Hull street, or about 48 feet from center of the intersection, does not contradict unimpeached testimony of the bus driver that the bus was at a dead stop only one foot over the center line atthe moment of impact; nor her testimony and that of still another that it had reached the intersection, before the collision occurred. The appellant's car was skidding as shown by physical marks on the pavement, from a point 97 feet west of point of collision to a point 90 feet east thereof.

The foregoing ultimate facts all are within the verdict of the jury as permissible inferences deducible from the evidence.

There being substantial evidence in the record to support the finding of the jury that the appellee's injuries were proximately caused by the act of the appellant in operating his automobile in a heedless and reckless disregard for the safety of his passengers, under our well-established rule, we will not disturb the verdict. This disposes of appellant's first claim of error.

We come now to a consideration of the second question. In the examination of prospective jurors on voir dire, in cases of this kind, counsel may, if acting in good faith, question them with respect to their or their family's possible interest in, or connection with, any particular insurance company, for the purpose of ascertaining their fitness to serve, and of enabling counsel to exercise his right of peremptory challenge, though plainly such a line of questioning must necessarily tend to lead to the belief that the defendant is insured and that the company referred to is defendant's insurer.

The matter rests largely within the sound discretion of the trial court. If, under the circumstances of the case, the question is calculated to prejudice the defendant before the jury, the trial court should exercise its discretionary power so as to remove the prejudice and insure a fair trial. This must be left largely to the presiding judge, who has ample power to prevent injustices to the parties litigating before him, and whose power should be used soundly for this purpose. His ruling will not be disturbed unless there has been an abuse of such discretion and such does not appear. See Olguin v. Thygesen,47 N.M. 377, 143 P.2d 585.

The last claim of error is based on the court's denial of appellant's motion to stay proceedings. The motion was filed under the Soldiers' and Sailors' Civil Relief Act of 1940, § 201, 50 U.S.C.A. Appendix, § 521, and prayed that "all further proceedings be * * * stayed for the period of his military service * * * and for three months thereafter * * *." The cited section of the above Act provides that: "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, inthe 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 the 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." (Italic ours.)

On this issue the record discloses the following: On February 23, 1946, the case was filed. On March 1, 1946, a motion was filed by appellee to take the depositions of appellant. On the same day the Court signed and filed an order granting said motion and set March 6, 1946, as the day for taking the same. Appellant was represented by his attorney at this hearing. During the trial they were introduced and read to the jury. On March 25, 1946, appellant through his attorney filed a motion to make more definite and certain. On August 5, 1946, appellee filed his bill of particulars. On August 16, 1946, appellant filed his answer. On August 10, 1946, the court set the case for trial as of September 11, 1946. On September 7, 1946, approximately six months after the filing of the case, appellant filed his motion for stay of proceedings. Appellant was within the jurisdiction of the court from February 23, 1946 until August 23, 1946, when he left the United States.

The motion did not show that any attempt had been made to procure leave for appellant so that he could be present at the trial. In fact, any showing of diligence on his part is wholly lacking, and we cannot say that the trial judge abused the discretion lodged in him by the Soldiers' and Sailors' Relief Act, supra. It therefore follows that this assignment is without merit. Boone v. Lightner, 319 U.S. 561, 63 S. Ct. 1223, 1231,57 L. Ed. 1587. See also Johnson v. Johnson, 59 Cal. App. 2d 375,139 P.2d 33; Koons v. Nelson, 113 Colo. 574, 160 P.2d 367; Miller v. Miller, 26 Cal. 2d 119, 156 P.2d 931; People ex rel. Flanders v. Neary, 113 Colo. 12, 154 P.2d 48.

Finding no error, the judgment will be affirmed and the cause remanded, with direction to the District Court to enter judgment against the surety on appellant's supersedeas bond, and to enforce the same. It is so ordered.

SADLER and McGHEE, JJ., concur.

COMPTON, J., having tried the case below did not participate.

BRICE, C.J., did not participate.