Williams v. Kroger Food Co., Docket No. 13569

• Decision Date: 25 April 1973
• Docket Number: No. 1,Docket No. 13569,1
• Citation: 46 Mich.App. 514,208 N.W.2d 549
• Parties: Jeannie D. WILLIAMS and Watler Williams, Plaintiffs-Appellants, v. KROGER FOOD COMPANY, a foreign corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 549

208 N.W.2d 549

46 Mich.App. 514

Jeannie D. WILLIAMS and Watler Williams, Plaintiffs-Appellants, v. KROGER FOOD COMPANY, a foreign corporation, Defendant-Appellee.

Docket No. 13569.

Court of Appeals of Michigan, Division No. 1.

April 25, 1973.

Rehearing Denied June 4, 1973.

Released for Publication June 27, 1973.

Gerald David White by Verne K. Maxwell, Detroit, for plaintiffs-appellants.

Plunkett, Cooney, Rutt & Peacock by J. P. O'Leary, Detroit, for defendant-appellee.

Before T. M. BURNS, P.J., and BASHARA and ADAMS, ^* JJ.

T. M. BURNS, Presiding Judge.

Although the issue presented by the instant appeal is relatively simple, namely whether the trial court abused its discretion by dismissing plaintiffs' cause of action and denying a subsequent motion for reinstatement, a detailed recital of the facts is necessary for a proper resolution of the question.

On February 24, 1968, plaintiff Jeannie Williams allegedly slipped and fell while shopping in a grocery store operated by the defendant. Plaintiffs brought suit seeking damages for $30,000 and asserting that the defendants was guilty of negligence by failing to maintain the floor of the store in a safe condition. Defendant offered to settle the matter for $3,000. Plaintiffs' attorney after examining the merits of the case recommended accepting the settlement; however, plaintiffs declined.

The suit was originally scheduled for trial on January 12, 1972. The parties, witnesses and respective counsel appeared on that date but because of another trial in progress, the trial judge assigned to hear the case was unavailable. The case was placed on the 'spin off' docket and was subject to rescheduling at any hour.

Plaintiffs accompanied their attorney to his office where a heated argument ensued in which Mrs. Williams accused her counsel of being incompetent and dishonest.

Later that same afternoon, plaintiffs' counsel received word from the court that the case had been rescheduled for the next day, January 13, 1972, at 9:00 a.m. He telephoned Mrs. Williams at home and relayed the information. She replied that she did not intend to appear, the only way she would appear would be if served with a subpoena, her husband was not to miss another day of work, and that she would not inconvenience the witnesses any further by requiring them to attend. Moreover, Mrs. Williams reiterated her dissatisfaction with counsel, stated that she would seek another attorney, and that if need be she would conduct the case herself. Her counsel explained that in the event she failed to appear the case would be dismissed. Mrs. Williams acknowledged this possibility. Counsel immediately prepared a motion to withdraw as plaintiffs' attorney. This motion was denied. As per conversation noted above, plaintiffs failed to appear in court on January 13, 1972. Accordingly, the case was dismissed with prejudice.

On January 26, 1972, plaintiffs moved to have the case reinstated on the grounds that in addition to being emotionally distraught, Mrs. Williams was physically unable to appear due to the aggravation of injuries incurred from the slip-and-fall accident at defendant's store. After a hearing on the motion, the trial court denied reinstatement. Plaintiffs appeal.

Plaintiffs contend that Mrs. Williams' absence was excusable since it stemmed from a 'temporary outburst of irrationality from a woman undergoing serious physical and mental distress exaggerated by the frustration of postponed trial'.

Where plaintiff and counsel fail to appear at a duly scheduled trial, the trial court may in its discretion dismiss the...