Bennett v. Carpenter

O’Hara, J. This case comes to us on a stipulated concise statement of facts. The more senior of us knew it once — by the sensible title of a "settled record”. By whatever name, it is difficult to be very concise in setting forth the chronology of a suit that was started in 1969, and never reached a trial on the merits and was finally dismissed with prejudice on motion in 1971. We will do our best. Plaintiff started a negligence action on November 19, 1969 in the Common Pleas Court of Detroit. It alleged he sustained injury to person and property in an automobile accident which is claimed to have occurred in the City of Detroit on September 23, 1967. On August 26, 1970, it was dismissed at defendant’s instance for lack of progress. On September 9, 1970, it was reinstated in the common pleas court on motion of plaintiff. On September 25, 1970, defendant submitted interrogatories to plaintiff. They remained unanswered until January 19, 1971, on which date a judge of the court in which it then impended ordered answer to the interrogatories to be made by February 3, 1971. They were not. The suit was again dismissed this time for failure to comply with the order aforesaid. For whatever reason the presiding judge of the common pleas court added to the order specifying the reason for dismissal as the failure to answer the interrogatories the words "without prejudice”. This is the nub of the lawsuit before us. We will of necessity set forth the balance of the chronology of judicial actions in the case before we discuss its effect. On March 25, 1971, plaintiff moved to reinstate the case again. The motion was denied under the then controlling common pleas court rule prohibit [555] ing more than one reinstatement. Common Pleas Court Rule 16, § 4. On May 11, 1971 plaintiff filed a new action in the Wayne Circuit Court. This time the plaintiff discovered that his claimed damages were twenty five thousand dollars instead of the ten, he previously claimed from the same accident. Defendant again, and by this time we suspect wearily, moved to dismiss. The Wayne Circuit Court dismissed the action "with prejudice” on the ground that the statute of limitation barred the action. Two recent decisions, one of this Court and one of the Supreme Court, require discussion. They are Buscaino v Rhodes, 385 Mich 474 (1971), and Stewart v Michigan Bell Telephone Co, 39 Mich App 360 (1972). First we examine Buscaino, supra. The opinion demands careful reading as it relates to the issue here presented. Mr. Justice Swainson noted with care and with supporting precedent, which the case reaffirms, that (p 483): "The purpose of the statute of limitations was well stated by Justice Campbell in Shadock v The Alpine Plank-Road Co (1889), 79 Mich 7,13.” He then quotes with approval from Shadock: " 'The whole reason for statutes of limitation is found in the danger of losing testimony, and of finding difficulty in getting at precise facts.’ ” This case is indeed exemplary of the soundness of the view. The defendant here has been in litigation involving an accident that took place over five years ago. Through no fault of his own he must dig up a defense, which he sought to obtain the factual basis for by written interrogatories, the answers to which were specifically ordered by the [556] court almost two years ago. The plaintiff here by delay and point-blank refusal to obey a valid order denied him the right to which Buscaino speaks. When plaintiff began his action anew in another forum the statute had long since run. Whether the action in the common pleas court was dismissed with or without prejudice does not alter this fact. If plaintiff’s forum shopping is to receive judicial protection it will not be from Buscaino. Hence we must look to the second case earlier mentioned. Stewart, supra, at first blush would seem to be plaintiff’s salvation. The facts are to a very large extent identical except that in Stewart two circuit courts in two different counties were involved while in the case at bar two courts of the same county with partially overlapping jurisdiction create the jurisdictional conflict. We mention this not because we distinguish Stewart on this ground. Rather we advert to it because there may be a question of comity between courts of concurrent jurisdiction in the same county which might outweigh the stated ground of collateral attack which formed part of the ratio decidendi of Stewart and the case at bar. Note well that in Stewart when the Court addresses itself to the question of plaintiffs’ lack of diligence in prosecuting the action by failure to answer defendants’ written interrogatories it held the effect of such failure was not before the Court because defendants failed to raise the question in the court below and thus it was not properly before this Court on review. We quote: "Plaintiffs assert that this issue [prosecutorial diligence] was not properly raised before the trial court, and according to the record before us, we agree.” Stewart, supra, p 364. [557] Not so in the case at bar. Paragraph 13 of defendant’s motion to dismiss in this case reads: "13. On February 3, 1971, the suit was dismissed for failure to answer defendant’s interrogatories.” The answer to the motion to dismiss reads: "13. Plaintiff admits paragraph thirteen.” It is patent that the instant case contains a preserved appellate issue that was not before the Stewart Court. Without expressing ourselves as being in agreement or disagreement with Stewart on the question of the tolling of the statute of limitations while that case impended in the Ma-comb County Circuit Court, we distinguish it on the ground above set forth. We hold that in this case the effect of plaintiffs failure to answer the written interrogatories was squarely before the Wayne circuit judge. The trial court in this case dismissed plaintiffs action "with prejudice” because his lack of diligence in prosecuting this cause, as indicated by plaintiffs wilful refusal to comply with the common pleas discovery order, forfeited any right to rely on the tolling statute. Thus the issue of "collateral attack” which seemed to trouble the Stewart panel is of no moment to us. The Wayne circuit judge dismissed "with prejudice”. We think he was entitled to do so. We add gratuitously that the common pleas bench and the Wayne circuit bench might well consider seeking Supreme Court approval of a common rule that will in Mr. Justice Swainson’s language in Buscaino, supra, p 483, help "simplify the procedure and unclog the dockets”. We add also it might help a hapless defendant who has been kept in court, or rather courts, trying to [558] obtain a more final adjudication of a cause of action that is alleged to have accrued over five years ago. Affirmed with costs to the defendant. V. J. Brennan, P. J., concurred.