Leong v. Railroad Transfer Service, Inc., 13582.

• Decision Date: 03 May 1962
• Docket Number: No. 13582.,13582.
• Citation: 302 F.2d 555
• Parties: Virginia LEONG, Plaintiff-Appellant, v. RAILROAD TRANSFER SERVICE, INC., Morgan Cab Company and Stuart Ethridge and Glenn W. Cooper, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

302 F.2d 555 (1962)

Virginia LEONG, Plaintiff-Appellant, v. RAILROAD TRANSFER SERVICE, INC., Morgan Cab Company and Stuart Ethridge and Glenn W. Cooper, Defendants-Appellees.

No. 13582.

United States Court of Appeals Seventh Circuit.

May 3, 1962.

Nat P. Ozmon, Jacob W. Horwitz, Charles F. Anesi, Chicago, Ill., for appellant.

William P. Treacy, Edward Wolfe, George F. Barrett, Chicago, Ill., for appellees.

Before DUFFY, SCHNACKENBERG and KILEY, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff, Virginia Leong, is a resident of Kansas City, Missouri. On June 30, 1958 she was in Chicago and was riding as a fare-paying passenger in a taxicab owned and operated by the defendant Morgan Cab Company. Near the Union Station in the City of Chicago, the taxi in which she was riding collided with a limousine cab operated by the defendant Railroad Transfer Service, Inc. Plaintiff was seriously injured. A showing was made that her doctor, hospital and medical bills exceeded $9,000.

The complaint herein was filed on December 10, 1959. After issue was joined, deposition notices were filed on June 27, 1960 and August 30, 1961. The attorney for one of the defendants reported to the court that "We went out to Kansas City last month to take depositions, I think, of nine doctors, and it lasted so long, we were there for days, and we didn't get them all finished."

The case was called for trial on the regular trial calendar on October 18, 1961, at 10 a. m. Counsel for plaintiff and counsel for each corporate defendant and the respective drivers appeared. Plaintiff's attorney and the attorney for defendant Railroad Transfer Service, Inc. moved for a continuance. An affidavit of counsel discloses the continuance was requested for the purpose of receiving from Kansas City copies of extensive depositions which had been taken there; the submission of such depositions to the two court-appointed physicians; and so that a pretrial conference could be held at which extensive objections to the deposition testimony could be considered. The Court stated: "We called 15 cases here on Monday morning, and being that no lawyers were ready on that call. The people don't need a judge to sit up here and continue cases. We will have to hold this for trial." The attorney for a co-defendant said: "May I say one more thing? I think the defendant, at least the defendant I represent, will be prejudiced unless the order of this Court the plaintiff be examined by impartial medical authorities —" The Court stated that it would not permit discovery matters of any kind to delay a trial. The Court again stated: "Gentlemen, we will hold this case for trial."

The attorney for the plaintiff and the attorneys for the defendants left the courtroom for their respective offices to make hurried preparations for trial. The affidavit of plaintiff's attorney shows he believed the clerk of the court would call by telephone as to when the trial of the cause was to be commenced; that such is the custom in the Circuit Court of Cook County, the Superior Court of Cook County, the Municipal Court of Chicago as well as being the practice of a number of the federal judges of the Northern District of Illinois.

On the same morning, at 11:15 a. m., the clerk called the instant case for trial, but none of the attorneys were then present. The Court, referring to the attorneys, stated: "They deliberately omitted to attend. The case will therefore be dismissed for want of prosecution."

Depositions were filed on October 24 and 25, 1961. On the latter date, plaintiff's attorney presented a motion to vacate the order of dismissal dated October 18, 1961, and asked that the cause be reinstated. Plaintiff's counsel explained it was his understanding the clerk would call his office when the Court was ready to proceed with the trial. The Court said: "We are not in a position to render that kind of service to lawyers. If you get that impression, it was erroneous. We can't call lawyers before cases come on to trial." The Court observed: "There has been no respect shown to the Court at all in this case. This motion will be denied."

Plaintiff's attorney then asked if he could be sworn as the motion on file was not under oath. The Court refused, saying "No, I won't hear any testimony in this case. I rely on the record."

On October 31, 1961, a notice, motion and affidavit were filed on behalf of plaintiff asking the District Court to reconsider its order entered on October 25, 1961. The Court denied the motion again stating the lawyers were discourteous — apparently for leaving the courtroom under the circumstances hereinbefore stated. There was nothing in the language used by any of the attorneys which showed any discourtesy to the Court.

Thus, the plaintiff finds herself in this situation. Although the Court's criticism was directed to all three attorneys, two for the defendants and one for the plaintiff, it is the plaintiff who has been penalized. She has not had her day in court and, if the order stands, she will not have had her day in court as the statute of limitations has run. On the other hand, although defendants' counsel was guilty of the same sort of misunderstanding as the plaintiff's their clients will be free of any liability on account of plaintiff's claim.

Trial courts should be commended for their endeavors to prevent delays in the trial of cases on their calendars. Unfortunately, some attorneys are lax in their efforts to bring cases...