Haskell v. Henrikson , 113 R.I. 720 ( 1974 )

Roberts, C. J.

This action of trespass for false arrest, imprisonment and assault and battery was instituted on August 28, 1965, by Marguerite T. Houston for her son, Richard Wayne Haskell, who at that time was a minor. The defendant, Roland Peter' Henrikson, at that time was a member of the Police Department of the Town of East Greenwich. The case was assigned for trial on May 17, 1973, and was continued to May 21 and then to May 22, 1973. At that time Haskell had attained his majority and was emancipated. At the time the case was called for trial on May 22, 1973, neither Haskell nor his mother appeared in court.

At the outset of the trial, defendant was allowed to take the stand to testify that plaintiff had called him on the telephone two weeks before trial to say that he did not wish to pursue the matter any further. The trial justice informed plaintiff’s counsel that he would continue the case until the afternoon, and, if plaintiff failed to appear, the action would be dismissed. No objection was raised to that order.

The plaintiff did not appear, nor were any excuses or explanations offered as to his absence. The trial court, upon motion by defendant, dismissed the action with prejudice. The plaintiff’s counsel appealed.

Berberian & Tanenbaum, Aram, K. Berberian, for plaintiff. A. Earl Shaw, Jr., Town Solicitor, for defendant.

Obviously, the trial justice did not dismiss the case solely on the ground of the plaintiff's failure to appear on the afternoon of May 22. The plaintiff, having been emancipated -by attaining his majority, was competent to terminate the litigation. Further, there was uncontradicted and unimpeached testimony adduced through the defendant that the plaintiff, had no desire to go on with the trial of the matter. In all of the circumstances, we cannot say that the action of the trial court in ordering the plaintiff to appear and dismissing the action when he did not appear constituted an abuse of discretion.

The plaintiff's appeal is denied and dismissed, the order appealed from is affirmed, and the case is remanded to the Superior Court for further proceedings.