Shirrell v. Missouri Edison Co., 59260

Citation535 S.W.2d 446
Decision Date14 April 1976
Docket NumberNo. 59260,59260
PartiesSandra Y. SHIRRELL et al., Plaintiffs-Appellants, v. MISSOURI EDISON COMPANY, Defendant-Respondent.
CourtUnited States State Supreme Court of Missouri

Robert R. Schwarz, Fordyce & Mayne, Clayton, William B. Quinn and Cynthia S. Holmes, St. Louis, for plaintiffs-appellants.

Robert V. Niedner, Niedner, Moerschel, Nack & Ahlheim, St. Charles, Gerre S. Langton, Evans & Dixon, St. Louis, for defendant-respondent.

FINCH, Presiding Judge.

The trial court, on motion of defendant, dismissed with prejudice a wrongful death action brought by the widow and minor children of a man allegedly killed as a result of defendant's negligence. The action was dismissed for failure to prosecute. Plaintiffs appealed to the Missouri Court of Appeals, St. Louis District, which reversed and remanded for trial, with one judge dissenting. On application of defendant, we ordered the case transferred in accordance with Art. V, § 10, Mo.Const., and pursuant therewith we now consider the case as though here on direct appeal. We affirm.

This suit was filed on October 3, 1969. The petition alleged that Donald E. Shirrell, an employee of a road construction firm, was electrocuted when machinery he was operating came in contact with overhanging power lines of defendant which allegedly were negligently maintained. Answer was filed and the parties thereafter engaged in discovery by means of both interrogatories and depositions, the last of which was filed on December 30, 1970. The record discloses no further activity in the case until it was placed by the court on the inactive calendar on September 30, 1971. The next entry was a request by plaintiffs on May 31, 1972, to have the case removed from the dismissal docket where it evidently had been placed, alleging as an explanation for delay to date the fact that the case had required extensive discovery by plaintiffs, that illness of plaintiffs' attorney had caused some delay and that difficulty had been experienced in obtaining an expert witness. The motion stated that an expert witness had now been obtained and that plaintiffs were ready for trial. It was requested that the case be placed on the trial docket.

Notwithstanding plaintiffs' allegations about being ready and their request that the case be placed on the trial docket, the case was not tried. Approximately one year later, on June 6, 1973, defendant filed a motion to dismiss for failure to prosecute. That motion was presented and argued and on June 29, 1973, was overruled.

The next activity disclosed by record entries was on September 25, 1973, when the court again ordered the case placed on the inactive docket. Finally, on April 12, 1974, defendant filed another motion to dismiss for failure to prosecute. That motion was presented and argued on April 19, 1974, after which the trial court ordered the case dismissed with prejudice at the cost of plaintiffs.

On April 26, 1974, plaintiffs filed a motion to set aside the order of dismissal. A hearing thereon was held at which William B. Quinn, the attorney who had filed and handled this suit on behalf of plaintiffs, testified in support of the motion. In addition to summarizing preparation consisting of interviewing witnesses and submitting interrogatories and taking depositions, he testified as to efforts to obtain photographs of the motor crane which came into contact with the power lines and the concrete finishing machine with which Sherill was working at the time he was killed and which finishing machine was connected at that time by hooks, cables, pulleys, etc. to the boom of the motor crane. He located the crane within a few days after he commenced his investigation but the concrete finishing machine had been moved elsewhere and thereafter was moved from job to job. It was November or December 1972, he testified, when he was finally able to obtain photographs thereof. In addition, Mr. Quinn testified that he had some trouble locating an expert to testify. Ultimately, he succeeded but then in the spring of 1972, he was informed by his expert that he had terminated his association with St. Louis University as a consulting electrical engineer and had entered the employment of Union Electric, the parent firm of defendant herein. This necessitated locating another expert.

Quinn testified that in December 1973 he suffered a coronary occlusion, together with a left lung embolus, causing him to be in the hospital for a week and thereafter at home under medication and under the doctor's care. He testified that he did not actively return to practice until April 4, 1974. He also testified that he had had a personal problem in that his wife had notified him in December 1973 that she was obtaining a divorce. On cross-examination Mr. Quinn testified that during all of 1972 and 1973 he was actively engaged in the practice of law, handling during that time some 'very, very rough and tumble litigation'.

Additional evidence on the motion consisted of an affidavit of Dr. Melvin L. Goldman, Mr. Quinn's doctor, which was received without objection as representing what Dr. Goldman would testify to, if present. It recited that Mr. Quinn suffered his coronary insufficiency and left lung embolus on December 16, 1973, that he was hospitalized for one week, that Mr. Quinn thereafter remained under his regular care and observation and that the illness was of such nature and severity as to disable him from performing the duties of his profession from December 16, 1973, through March 25, 1974. Thereafter he was partially restricted in his work activity, but was scheduled to return to full activity on or about May 15, 1974.

On May 10, 1974, the trial court overruled plaintiffs' motion to set aside the judgment of dismissal and this appeal followed.

Rule 67.02 authorizes a defendant to move for dismissal of a civil action against him on account of failure on the part of the plaintiff to prosecute said action. In addition, it is well settled that courts have inherent authority, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence. The rule is stated in Euge v. Lemay Bank & Trust Co., 386 S.W.2d 398, 399 (Mo.1965), as follows:

'The general rule is that courts have inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence, and that the action thereon will not be disturbed on appeal unless such discretion was abused. City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 68(2); Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87, 90(5). * * *'

That rule was reaffirmed in Esslinger v. Roach, 463 S.W.2d 861 (Mo.1971). See also City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65 (Mo.App.1956); Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1 (1940); 24 Am.Jur.2d, Dismissal, Discontinuance and Nonsuit, § 59 (1966) 27 C.J.S. Dismissal and Nonsuit § 65(1) (1959).

As noted in the quotation from Euge, the dismissal for failure to prosecute will not be disturbed on appeal unless the discretion of the trial court has been abused. Thus, the only question presented on this appeal is whether the trial court abused its discretion in dismissing for failure to prosecute. In resolving that question, the standard of review was succinctly stated in James v. Turilli, 473 S.W.2d 757, 763 (Mo.App.1971), as follows:

'Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo.App., 402 S.W.2d 589(3--4).'

In Anderson v. Robertson, the case cited and relied upon in the foregoing quotation from James v. Turilli, the court stated the rule thus, 402 S.W.2d at 593:

'Reverting now to the Harriman and Mullins cases, supra, we say that judicial discretion is abused then a trial court's ruling is clearly against the logic of the circumstances then before ...

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