Billy F. Rankin v. Shayne Brothers, Inc.

280 F.2d 55, 108 U.S. App. D.C. 47, 3 Fed. R. Serv. 2d 719, 1960 U.S. App. LEXIS 4477

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 26, 1960
• Docket: 15440
• Status: Published

Opinions

FAHY, Circuit Judge.

On April 23, 1956, we reversed a judgment entered on a verdict directed by the District Court against appellant, plaintiff in the District Court, and in favor of ap-pellee, defendant in that court. The verdict was directed after presentation of evidence on both sides. Rankin v. Shayne Bros., Inc., 98 U.S.App.D.C. 214, 234 F.2d 35.¹ A copy of our opinion and a certified copy of the judgment remanding the case for a new trial were filed in the District Court May 11, 1956. The bill of costs was recalled by this court in connection with the retaxing of costs, and was filed in corrected form in the District Court November 2, 1956.

On September 24, 1959, on motion of appellee pursuant to Rule 41(b), Fed.R. Civ.P., 28 U.S.C.A., the District Court dismissed the action for lack of prosecution. On this appeal our question is whether in dismissing the action the court abused its discretion. Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276, and cases there cited.

We think the court erred in the special circumstances of the case. The reasons we think so are primarily two-fold: When our retaxed bill of costs reached the District Court on November 2, 1956, the attorney for Rankin was ill and incapacitated, so much so that he had discontinued practice.² Secondly, Rankin himself was under medical care from October 1956 to February 1959. His illness culminated in his hospitalization for about two months starting in November 1958. His condition was evidenced at the hearing on the motion by the certificate of a doctor to the effect that if Rankin had participated in a retrial during the period between October 1956 and February 1959 a severe breakdown might well have resulted.

There is a secondary reason also why we conclude that, although appellee is now entitled to a prompt trial, appellant should not be denied any trial. This reason is the absence of any call of the case, referral of it to the Assignment Commissioner or other action designed to initiate any steps toward securing compliance with our judgment. See Meloy v. Keenan, 17 App.D.C. 235.

There is strength in appellee’s argument that it might be prejudiced by the passage of time; ³ but this argument is not sufficiently supported factually to overbalance the certainty of prejudice to appellant if deprived entirely of a retrial as authorized by our previous decision.

In Field v. American-West African Line, 2 Cir., 1946, 154 F.2d 652, the appellate court conditioned the setting aside of the dismissal of an action for lack of prosecution by requiring the trial to proceed on the depositions taken by both parties in preparation for trial. In line with such a procedure the District Court in the present case may, in the exercise of a sound discretion and after hearing the parties on the subject, require that the issue of liability be determined on the evidence at the first trial, without such restriction applying, however, to proof of damages.

Reversed and remanded.

1 . At the same time we affirmed judgments in another case growing out of the same collision, on January 3, 1951, between automobiles, respectively, of Rankin and Shayne Brothers.

2 . These factual matters were brought out by appellant in argument on the motion and not by way of affidavit, but appellee does not appear to dispute their accuracy.

3 . It was represented to us, for example, that appellee’s driver and helper who were witnesses at the earlier trial cannot now be located.