Krim v. Osborne , 20 Mich. App. 237 ( 1969 )

20 Mich. App. 237 (1969) 173 N.W.2d 737

KRIM
v.
OSBORNE

Docket No. 6,814.

Michigan Court of Appeals.

Decided November 25, 1969. Leave to appeal denied February 4, 1970.

Zeff & Zeff, for plaintiff.

Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle (George M. Clark, of counsel), for defendant.

Before: FITZGERALD, P.J., and McGREGOR and V.J. BRENNAN, JJ.

Leave to appeal denied February 4, 1970. See 383 Mich 765.

McGREGOR, J.

This is an appeal from a dismissal of an action in favor of defendants by the Wayne county circuit court. Litigation arose out of an automobile accident which occurred on July 17, 1963. Plaintiff filed his complaint and demand for jury trial on July 7, 1966; defendants filed their appearance and answers to plaintiff's complaint on September 23, 1966; on November 2, 1966, plaintiff's deposition was noticed but adjourned at plaintiff's request. Subsequent deposition dates were scheduled, namely: May 15, 1967, June 19, 1967, July 17, 1967, September 11, 1967; and all were adjourned at plaintiff's request.

On December 5, 1967, defendants filed a motion to dismiss, pursuant to GCR 1963, 313.4, on the ground that plaintiff willfully failed to appear for deposition.

"If a party or officer or managing agent of a party willfully fails to appear before the person who is to take his deposition, after being served with a proper notice or fails to serve answers to interrogatories submitted under Rule 309, after proper notice of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party." GCR 1963, 313.4.

Plaintiff's deposition was re-noticed on December 14, 1967, and plaintiff did present himself on January 24, 1968. Thus, the praecipe for motion to dismiss was dismissed.

On January 31, 1968, seven interrogatories were submitted to plaintiff, per GCR 1963, 309, by GCR 1963, 313.4. When these were not answered, on June 5, 1968, defendants again filed a motion to dismiss for failure to answer interrogatories as provided by the indicated rule. On June 25, 1968, the answers to the interrogatories were filed.

On November 7, 1968, a motion for more certain answers to interrogatories and for production of documents was filed by defendants. This was argued on November 15, 1968, and plaintiff was allowed 30 days to comply with the motion.

On December 13, 1968, defendants again appeared before Wayne county circuit court and reported that none of the requested information had been forwarded.

On December 20, 1968, after notice and argument, the motion to dismiss was granted in favor of defendants. This was more than 5 years after the date of the accident, and more than 2-1/2 years after the date that the litigation was started.

The sole issue before us on appeal is whether the lower court's dismissal of plaintiff's cause of action constituted an abuse of the court's discretionary power. Since no Michigan decision heretofore has dealt with an interpretation of GCR 1963, 313.4, we turn to Fed Rules Civ Proc, 37(d), 28 USCA (1968 Ed) App, the source of our court rule.

The purpose of federal rule 37(d) is to secure compliance with discovery rules and not to punish erring parties. Robison v. Transamerica Insurance Company (CA10, 1966), 368 F2d 37. This rule should be construed to secure the just, speedy, and inexpensive determination of actions. Babcock & Wilcox Co. v. North Carolina Pulp Co., (Del, 1938), 25 F Supp 596. Dismissals of causes of action under this rule are within the discretionary power of the trial judge (Halverson v. Campbell Soup Company [CA7, 1967], 374 F2d 810; White Pine Copper Company v. Continental Ins. Company [WD, Mich, 1968], 166 F Supp 148; Dann v. Compagnie Generale Trans-Atlantique Limited [ED NY, 1939], 29 F Supp 330), but because of the drastic nature of such action, the rule should be applied only in extreme circumstances. Independent Productions Corporation v. Loew's Incorporated, (CA2 1960), 283 F2d 730.

Plaintiff contends that the trial court erred in granting defendants' motion to dismiss because there was no showing of any willful failure on his part. We do not agree. To be "willful" the failure need not be accompanied by wrongful intent. It is sufficient if it is conscious or intentional, not accidental or involuntary. Robison v. Transamerica Insurance Co., supra.

The trial court's action in granting defendants' motion to dismiss was within its discretionary power. There was a period of over two years from the time that defendants first noticed plaintiff's deposition until the motion to dismiss was finally granted. Plaintiff's inactivity and delay were without apparent justification. At the hearing on the motion to dismiss, plaintiff did not give any reasonable explanation for his repeated dilatory conduct.

Plaintiff also cites GCR 1963, 313.4 to support his contention that affirmance of the lower court order would constitute an invasion of his "substantial" rights. It appears to this Court that the GCR 1963, 313.4 rule is to be construed to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties. However, defendants also have substantial rights, one of them being the right of discovery. Yet, more than five years after the date when the cause of action accrued, plaintiff had neither supplied defendants with his damages, nor given any meritorious explanation for his failure to do so. As stated in Geigel v. Sea Land Service, Inc., (DC, Puerto Rico, 1968), 44 FRD 1:

"There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose the attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. Link v. Wabash Railroad Co., 370 US 626, (82 S Ct 1386, 8 L Ed 2d 734)."

The granting of defendants' motion to dismiss was not an abuse of discretion.

Affirmed. Costs to defendants.

All concurred.