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Plesniak v. Wiegand

SEPTEMBER 2, 1975.

WALTER PLESNIAK, PLAINTIFF-APPELLEE,

v.

KENNETH F. WIEGAND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RONALD J. CRANE, Judge, presiding. MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages arising out of a vehicular collision allegedly caused by the negligence of Kenneth F. Wiegand. The court, sitting without a jury, found for the plaintiff, Walter Plesniak, and entered a judgment for damages in the amount of $710. The defendant, appealing, asks that the cause be remanded for a new trial or, in the alternative, that the amount of damages awarded be reduced to $285. The defendant raises four issues on appeal: (1) the trial court abused its discretion in denying defendant's motion for a stay of proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. § 501 et seq. (1970)); (2) there was insufficient evidence to establish that the defendant was the driver of the car involved in the collision; (3) there was insufficient evidence to establish that the defendant's car struck the plaintiff's truck, causing damage; and (4) there was insufficient evidence to establish the amount of damages suffered by the plaintiff.

The plaintiff, who owned the truck involved in the collision, and Stephan Gracz, the driver of the truck, were the only witnesses who testified. Both were called by the plaintiff. The defendant was not present at the trial, and his attorney did not call any witnesses.

The driver of the truck testified that while he was preparing to exit a parking lot on to Dixie Highway (a north and south highway in Hazelcrest), he observed no nearby vehicles approaching on the highway. He did notice, however, a sports car in the same parking lot which was proceeding toward an exit 20 feet south of the exit he was using. The truck driver then pulled out of the parking lot and turned south on Dixie Highway. He heard a screech of rubber and observed the sports car accelerating at a great rate of speed as it turned north on to Dixie Highway. The truck driver stopped his truck, and the sports car collided with the truck behind the cab of the truck. The only portion of the truck which was extending into the northbound lanes at the time of the collision was the rear wheels. The sports car remained in the northbound lanes during the entire incident.

On cross-examination, the truck driver testified that he had no recollection of the name of the driver of the sports car. However, on redirect, after refreshing his recollection by examining a document described as a police report, the witness testified that he remembered that the driver of the sports car was named Kenneth Wiegand. On recross, he testified that he had no recollection of the sports car driver's name independent of the document he had examined. The court then inquired whether he remembered the sports-car driver's name independent of the document and the witness said, "Yes."

Walter Plesniak then testified in his own behalf that "certain physical damage" had been done to his vehicle at the point where the sports car collided with his truck. He testified that he had a bill for $285 for the repair of that damage. Mr. Plesniak testified that the truck was used for rental purposes, and he was unable to rent the vehicle for five weeks after the occurrence. Upon this evidence, the court entered judgment for the plaintiff in the amount of $710 plus costs.

The defendant's first contention on appeal is that the trial court abused its discretion in denying the defendant's motion for a stay in the proceedings pursuant to section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. § 521 (1970)). The court's denial of the defendant's motion to stay the proceedings was entered the same day the trial was held. However, the court had granted the defendant's motions to stay the proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act on three prior occasions. We feel it necessary to set forth the record concerning these prior stays in order to put the trial court's final order in perspective.

The plaintiff filed suit on May 5, 1969. On October 28, 1969, the defendant's attorney moved that the court stay the proceedings by placing the case on the military calendar. The defendant supported his motion with an affidavit signed by the defendant's mother which stated that the defendant was an officer on active duty in the army in Savannah, Georgia and that his "current term of service" would expire in November, 1971. The court granted the defendant's motion and placed the case on the military calendar and on the no progress call until December, 1971.

Shortly after December, 1971, the case was taken off the military calender and continued until March 1, 1972. On March 1, 1972, the defendant's attorney again moved to stay the proceedings, and the court again granted the defendant's motion by placing the case on the military calendar until November, 1972.

In November, 1972, the case was again removed from the military calendar. The case was continued several times, during which time the defendant's attorney submitted another affidavit signed by the defendant's mother dated December 30, 1972. This affidavit stated that the defendant was on active duty with the army in Colorado Springs, Colorado.

On January 2, 1973, the court ordered that the defendant notify his attorneys within 30 days as to the next date that he would be available for trial. Pursuant to this order the defendant wrote a letter to his attorneys which was presented to the court. The letter stated that due to the pressing demands of his position as commanding officer of a helicopter squadron stationed in Colorado, it would be "almost impossible" for the defendant to come to Chicago at the present time. The defendant stated in the letter that he, "may be visiting the Chicago area on or about 27 December 1973 to 1 January 1974." After receiving this letter the court, on January 30, 1973, continued the case until December 31, 1973, and placed the word "Final" on the order.

On December 31, 1973, the case was called for trial, and the defendant's attorney again moved to continue the case pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940. The defendant's attorney stated that the defendant was still on active duty in Colorado Springs, Colorado, and had not been in Illinois since the case was last called. The defendant's attorney said nothing concerning whether or when the defendant could be present for trial in the future. The court stated that it was of the opinion that the Soldiers' and Sailors' Civil Relief Act of 1940 did not require indefinite continuances, and that it could not understand why a commanding officer could not obtain leave to return to Illinois for a trial. The court therefore denied the defendant's motion for a further continuance and ordered the case to proceed to trial. The case was tried the same day without the presence of the defendant. The defendant's attorney was present and he cross-examined the plaintiff's witnesses. The defense did not call any witnesses.

The defendant contends that the court erred in denying the defendant's motion to continue the proceedings until a future date. The defendant argues that section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. § 521 (1970)) requires that a court stay proceedings whenever a party's absence due to active duty in the military would materially affect his ability to prosecute or defend a suit he was a party to. The only discretion the court had, the defendant contends, was to determine whether the defendant's absence would have materially affected his ability to defend. Because the defendant was the alleged driver of the car and a witness to the occurrence, the defendant contends that his absence affected his ability to defend.

• 1 If the defendant's view of the law is correct, then a party would only have to establish three elements in order to obtain a stay of proceedings pursuant to the Act: (1) the party is on active duty in the military; (2) the party is not or will not be present for the trial; and (3) the party's absence during the trial would materially affect his ability to prosecute or defend. We are of the opinion that the defendant's view of the law is incorrect. A party must establish, in addition to the above three elements, that his military status is the ...


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