I agree with the majority that the judgment or order appealed from should be reversed as to the defendants Anderson, Norman, and Kraft Cheese Company. I would go further and reverse as to the defendant Devine. I dissent from the majority opinion for its failure to reverse as to the latter defendant. My reasons for reversal are the same as to all of the defendants.
The facts are the determining factors in this case, and I will amplify the statement thereof in the majority opinion. On January 13, 1942, a Buick coupé, driven by John Boyd and carrying Edna Heck, Ervin Heck, and Ollena Royer, collided with a semitrailer truck owned by Anderson and driven by Devine. Norman was asleep in the cab. The connection of *Page 389 the cheese company does not appear. The passengers in the coupé lived in Dallas county. Anderson and Norman were residents of Nebraska, and Devine lived at Livermore, in Humboldt county. The truck was traveling northward down an ice-covered hill, and the coupé, proceeding southward up the hill, passed in safety the cab and motor portion of the vehicle but collided with the rear part of the trailer. Boyd was killed and each of his passengers was injured. Four actions were brought against the defendants — three in the district court of Dallas county, and the Royer action in the district court of Boone county. Petitions, substantially identical except as to the matter of injuries, were filed in each case on June 26, 1942, by the same firm of attorneys. The same firm of attorneys represented all defendants in each action. The letter set out by the majority, written by defendants' attorneys stating they would like to take Devine's deposition to avoid a continuance under the Soldiers' and Sailors' Civil Relief Act of 1940, bears date of August 26, 1942. At this time Devine had received notice that he would soon be called into the service. It will be noted that the letter recites that the defendants "would like to take his deposition by stipulation." Plaintiffs' attorneys, on August 27, 1942, in answer, wrote defendants' attorneys to prepare a stipulation to take the deposition and they would sign it. The stipulation was executed on August 31, 1942, by the attorneys for plaintiffs and defendants, providing for the taking of the deposition by oral examination, to "be offered and read in evidence at the trial of any one or all of" the four actions. The deposition was taken on September 3, 1942, and a transcript of it was filed with the clerks of the respective courts in which the actions were pending. On September 9, 1942, defendants filed answers, substantially the same in each case. The Royer case came on for trial at the September 1942 term of the Boone County District Court. The trial of the action was begun on October 7th, and concluded on October 13, 1942. Just after court opened at 9 o'clock in the forenoon of October 7th, the attorneys of the plaintiff learned from opposing counsel that, although defendant Devine was at his home in Livermore, Iowa, he would not be present during the trial. *Page 390 Plaintiff's attorneys were desirous of his being present at the trial and they had a subpoena served upon him on October 7, 1942, at Livermore, to appear as a witness for plaintiff on October 8, 1942. He appeared and sat in the courtroom as plaintiff put in her case. The sheriff and the coroner of Dallas county were witnesses for plaintiff. Each of them testified that they were at the scene of the collision after it occurred and that Devine told them the semitrailer truck got away from him as it came down the icy hill and jackknifed and the trailer swung into the path of the coupé. The answer of defendants admits that coupé struck the rear wheels of the trailer and knocked them from under it. One of these witnesses pointed out Devine, in the courtroom, as the person who made the admission. The plaintiff called Devine to the witness stand to ask him a few questions. Plaintiff then dismissed him as a witness. The defendants did not see fit to put him on the stand as their witness, either by calling him out of turn, before plaintiff rested, or while putting in their testimony. Instead, they read his deposition. Devine knew better than anyone else whether he made the admissions. If he had not made them, and was interested in the outcome of the case, he would have demanded that he be called as a witness to refute the testimony of the sheriff and the coroner, and Dyer, Jordan Dyer and Miller, Huebner Miller, the attorneys for the defendants, and Devine's codefendants, all would have insisted that he take the witness stand and deny the testimony. The fact that he did not take the stand as a witness in behalf of himself and his codefendants is convincing proof that there was no such insistence.
Many years ago Lord Mansfield, in Blatch v. Archer, 1 Cowp. 63, 65, enunciated the maxim that:
"All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
It has been quoted and cited many times, lately in Boone v. Lightner, 319 U.S. 561, 570, 63 S. Ct. 1223, 1229, 87 L. Ed. 1587, 1593. The thought is often expressed in instructions, and the California Code of Civil Procedure, section 2061 (6), requires it to be done, on all proper occasions. It is axiomatic that where *Page 391 evidence which would properly be a part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without any satisfactory explanation, the tribunal passing upon the matter may draw an inference that it would be unfavorable to him. The presumption is against such a party, and most strongly against him where the party is the witness who does not testify. The rule is universal that where evidence is introduced tending to fix liability on a party who has it in his power to offer evidence refuting the testimony and rebutting the inferences deducible therefrom, and he neglects or refuses to offer such evidence, the natural inference is that the evidence, if produced, would support, instead of rebut, the inferences against him. Courts have held that the presumption is conclusive. See Pennsylvania R. Co. v. Anoka Nat. Bk., 8 Cir., Minn., 108 F. 482, 486. In Golinvaux v. Burlington, C.R. N. Ry. Co., 125 Iowa 652, 657, 101 N.W. 465, 467, the deceased was killed in a crossing accident. A companion with him in the wagon escaped injury. The plaintiff administratrix did not call this witness. This court said:
"For some reason the plaintiff did not call the man that was in the wagon who escaped with his life as a witness in the case. No excuse was given for not doing so, and we can only surmise as tothe reason therefor." (Italics ours.)
"Where facts are in evidence affording legitimate inferences going to establish the ultimate fact that the evidence is designed to prove, and the party to be affected by the proof, with an opportunity to do so, fails to deny or explain them, they may well be taken as admitted with all the effect of the inferences afforded." 1 Moore on Facts, section 571, citing many cases.
In Dickinson v. Bentley, 80 Iowa 482, 488, 45 N.W. 903, 905, the court held that such a failure to testify by a party was to be regarded as a "practical confession."
In the opening argument to the jury plaintiff's attorney commented upon the fact that Devine had not denied the admissions charged against him. What was the response to this by defendants' attorney? It was not that Devine was not *Page 392 available as a witness to deny them because he was in the military service, but the only explanation made was "that it was not necessary for John Devine to be present to deny the same because the defendants' witness Floyd Norman had denied that any such statements were made." The excuse is not persuasive. Defendants were represented by able lawyers — lawyers who well understand that it always behooves a party to produce all the available evidence which the exigencies of the case demand, considering the weakness of the evidence already produced. Norman had testified that it was some other truck driver, and not Devine, who had made the admissions to the sheriff. There was a verdict for plaintiff in the Boone county case, which was set aside and the case tried again, at which time an application for stay under the Soldiers' and Sailors' Civil Relief Act of 1940 was denied. It must be borne in mind, in considering the failure to use Devine as an oral witness, that a denial of the testimony of the sheriff and coroner, by Devine, was of much more importance to him than to his codefendants, since under the court's instructions the admissions were to be considered only against him and not against the other defendants.
On November 4, 1942, not Devine alone but all of the defendants made application, in all the cases, for a stay under the act of 1940, alleging, as grounds, a good defense, and that Devine was "a necessary witness on his [own] behalf and on behalf of theother defendants." (Italics ours.) On November 9, 1942, all the defendants in the four cases (including the retrial of the Royer case) filed an amendment to their application, alleging as an additional ground that when Devine's deposition was taken he was asked no questions about his said admissions, and had no opportunity to explain them, and had no such opportunity at the trial of the Royer case, since he was not present because of such military service. On November 14, 1942, an affidavit supplementary to the hearing on the application to stay was made and filed by one of defendants' attorneys, stating again that Devine was prevented from denying the admissions in the Royer trial because of his military service. On November 16, 1942, an affidavit was filed by one of plaintiffs' attorneys expressly denying the statement that Devine was not available as an oral witness in the Royer case. The same statement that Devine had *Page 393 opportunity to testify for defendants in the Royer trial was made by plaintiffs' attorney in the oral submission to this court, and in the written submission, and in neither argument has the statement been denied by opposing counsel.
The certificate of his commanding officer at Camp Dodge, Des Moines, Iowa, under date of October 21, 1942, states that Devine was inducted into the United States Army October 5, 1942, and was attached unassigned to this organization October 19, 1942. The Royer trial was had on October 7th to October 13, 1942, both dates inclusive. It is common knowledge that those inducted were given two weeks after induction to go home and prepare for actual entrance into the service. There is no contention in defendants' argument that Devine was not available as a witness during the first Royer trial. The matter is not discussed in the majority opinion, the thought expressed therein being that what was done or left undone on behalf of Devine in the Royer trial cannot affect his rights under his application for a stay in the other three cases. It was upon the request of defendants' attorneys that Devine's deposition, as their witness, was proposed and taken. It was to be read into the record of any or all of the four cases. Devine and his codefendants were content to use the deposition in the Royer trial even though he could have been put upon the witness stand and have given his testimony orally. He could have been present to help to select the jury and to advise and counsel with his attorneys throughout the trial. But neither he nor his codefendants, nor their attorneys, saw fit to avail themselves of the privilege and opportunity. They did not then think that his presence at the trial was necessary to properly present their defense, or that, in the words of section 521 of the Relief Act, the "conduct [of] his defense [would be] materially affected by reason of his military service." Devine had every opportunity to make denial of his alleged admissions in the Royer case and did not do it. His failure to deny them is an admission of their truth, and that his testimony, if given, would have sustained the testimony of the sheriff and the coroner. There is no statement of his in the record to the contrary. Neither is there any direct statement in the applications or affidavits filed by the *Page 394 defendants that he will deny the admissions in the future if given another opportunity. There is no showing that his presence for the trial of the cases involved in this appeal is any more necessary or urgent than it was in the Royer trial.
The Relief Act was enacted for the benefit of those in the various military services, and to aid in the nation's defense by having those in the armed forces with minds unbothered because of litigation at home affecting them or their property rights. But the serviceman is permitted to be the judge of whether the provisions of the act are of any benefit to him, or whether he wishes to take advantage of any of its provisions, or whether the prosecution of any suit will disturb his serenity of mind. If he and the owner of a truck which he was driving are protected by insurance, it is his privilege and right to waive any provision in the act permitting a stay of proceedings. There is no showing that his presence at the trials is of any more importance to him than it was when his attorneys procured the stipulation that his deposition could be read in all of the cases. As said in Royster v. Lederle, 6 Cir., Mich., 128 F.2d 197, an applicant for a stay may by his own negligence, omissions, or deliberate act defeat his right to a stay. Is a litigant who induces his opponent to stipulate that the other may take the deposition of a witness to be granted a continuance of the trial because he overlooked interrogating him on some matter, or because an opposing witness testifies to a matter concerning which he would like the deponent to testify? It is uniformly true that some matters are overlooked in the taking of most depositions and the interrogating of most witnesses. It is oftentimes true that matters arise in the progress of a trial that make a party wish that he had a deponent present to testify in person. But I have never heard it urged as a ground for the continuance of a case on the motion of the one taking the deposition. Certainly the application of Anderson, Norman, and the Kraft Cheese Company should be denied on that ground alone and not because they may not be entitled to any benefits under the Relief Act. This is true even though they refused the opportunity to have Devine deny the admissions in the Royer trial.
The majority, with a seeming guileless naïveté, state "that we must assume that his [Devine's] codefendants joined in the *Page 395 application on his behalf alone." Anyone subscribing to this statement likely will do so with his tongue in his cheek. There is no basis whatsoever for it in the record. The application and amendment are made by all of the defendants in behalf of all of them. These pleadings, and the affidavit filed by them on November 14, 1942, repeatedly state that Devine's presence "is necessary not only to his defense, but to the defense of all of the defendants," and that "John Devine is materially prejudiced as are also all of the other defendants, and this court should stay the proceedings against all of the defendants." Defendants' printed argument insists that this court affirm the order of the trial court as to all defendants. Following the majority outside of the record, but keeping within common knowledge and common experience in such matters, it may, with much sounder reason, be inferred that Anderson, the owner of the truck, is insured, and that the application was not made wholly for the benefit of Devine.
Devine was willing, when the stipulation for the deposition was proposed and signed, that all of the trials proceed to conclusion in his absence. He had no intention of being at the Royer trial. He was not interested in being present to select the jury and to aid and counsel with the attorneys for the defense. He was no more acquainted with the jury panel in Boone county than he will be in Dallas county. His home was in Humboldt county. He evidenced no desire to have any part in any of the trials before he entered the service. His whole conduct evidenced the contrary. The applications for stay were made and filed by the attorneys for the defendants after he entered the service.
I am sincerely interested that every person in the service have the full protection of the Soldiers' and Sailors' Civil Relief Act of 1940. It should be most generously and liberally construed in their behalf. But, as said in the reports of the Judiciary Committees of Congress:
"`The lesson of the stay laws of the Civil War teaches that an arbitrary and rigid protection against suits is as much a mistaken kindness to the soldier as it is unnecessary. A total suspension for the period of the war of all rights against a soldier defeats its own purpose.'" Footnotes to Boone v. Lightner, *Page 396 supra, 319 U.S. 561, 567, 63 S. Ct. 1223, 1227, 87 L. Ed. 1587, 1592.
The courts should be watchful that the immunities of the act be not put to unworthy purposes. Boone v. Lightner, supra. I think all of the defendants have waived and are estopped by the stipulation respecting the taking of the deposition and its use in all of the cases, and by the conduct of Devine and his codefendants in seeking a stay only for the purpose of doing that which they refused to do when they had the opportunity to avail themselves of it.
I would reverse as to all defendants for the reasons herein stated.
OLIVER and GARFIELD, JJ., join in this dissent.