Culver v. Superior Court

MOORE, P. J.

The question here for decision is whether the parents of a minor son who with them is defendant in an action for damages for his alleged negligence in the operation of an automobile are entitled to a “stay” of the trial until the son returns to Los Angeles County from the armed forces overseas.

In February 1953, one John Kulash and others filed an action in respondent court against petitioners Edgar Culver and wife and their son Ronald Wesley for damages resulting from an automobile accident in which the son was a participant. Ronald was a minor and his parents had consented to his driving the offending car. Petitioners answered the complaint, and on April 3, 1953, plaintiffs served and filed a setting card. The cause was set for trial in respondent court on December 11. Within a week prior to the trial date, counsel for the defendants asked plaintiffs’ attorney for a continuance because of Ronald’s being in the Army overseas and could not be present. When the matter was called for trial, defendants moved for a continuance to a time when Ronald would be discharged. The court denied the motion as to Mr. and Mrs. Culver but consented only to a brief continuance to enable them to obtain the deposition of Ronald. Thereupon, the Culvers applied for a writ of prohibition against any action “for the time required and provided in said Soldiers’ and Sailors’ Civil Relief Act of 1940.”

[78]

Section 521 of the Soldiers’ and Sailors’ Civil Relief Act of 1940

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provides that an active soldier who is a defendant in an action before any court shall be entitled to a stay of proceedings unless in the opinion of the court the ability of the defendant to conduct his defense is not materially affected by reason of his military service.

In the action at bar, the parents are defendants by virtue of having consented to their son’s driving the motor car on a public highway. They are in effect demanding that the trial of the action be stayed until the son is released from service. While the act is to be always so liberally construed as to protect the active soldier and sailor

(Vasey

v.