Opinion
No. 32671
Decided February 20, 1952.
Dismissal for failure to prosecute — Based on failures occurring before granting leave to amend — Abuse of discretion — Amendment filed within period of leave.
Where a court grants leave to file a third amended petition and the plaintiff files such pleading within the period of leave granted, the action of the court in sustaining a motion to dismiss the cause for lack of prosecution based upon failures of the plaintiff to prosecute the action which occurred prior to the grant of leave to file such amended petition is an abuse of discretion.
APPEAL from the Court of Appeals for Scioto county.
This is an action by the plaintiff, appellant herein, as administratrix of the estate of her deceased husband, John Banks, against the defendants, The Ohio Power Company and the Ideal Milk Company, appellees herein, for the alleged wrongful death of Banks on March 24, 1944.
The original petition was filed in the Common Pleas Court of Scioto County on March 2, 1946. It alleged that Banks, in the course of his employment with the Warner-Wall Transfer Company, was sent to the second floor of a building owned by the milk company; that, while proceeding along a steel I-beam located on the rear of such building, Banks came in contact with an uninsulated high-tension wire maintained by the power company; that said high-tension wire was strung along the back of the building at distances of about 30 feet from the ground, five feet from the rear of the building and 18 inches from the steel I-beam; that plaintiff's decedent came in contact with the uninsulated wire, as a result of which he suffered an electric shock, causing him to fall to the ground; and that, as a result of such shock and fall, he died on the same day.
The petition alleged also that the power company was negligent in that it maintained its uninsulated high-tension wire under the particular circumstances set out in the petition; in that it failed to erect appropriate warning signs; in that it failed to safeguard or remove said high-tension wire, although it knew that improvements were being made on the building and that the wire was in a dangerous position with reference to the improvements; and in that it failed to erect and maintain said high-tension wire as provided by the statutes of the state of Ohio.
The petition set out specifications of negligence against the milk company with respect to failure to furnish employees of the Warner-Wall Transfer Company with a safe place to work, to warn them, or to request the removal of the wire.
Both defendants, in March 1946, filed motions to strike certain allegations from the petition. The motions were overruled except as to one item and the plaintiff was given leave to file an amended petition within 15 days. On the same day an amended petition was filed. On December 12, 1946, a demurrer was filed to the amended petition, and on March 28, 1947, the demurrer was sustained with leave to plead further within 30 days. From the court's opinion it seems that the demurrer was sustained on the ground that, since the General Assembly in 1929 repealed the statute requiring all wires conducting electric current to be insulated, the fact that electric current is now conducted through uninsulated wires could not alone be considered as negligence, and that, since the power company was not maintaining its wires contrary to law, it was not negligent in permitting them to be uninsulated. On April 28, 1947, the plaintiff filed a second amended petition to which the power company filed a motion to strike. This motion was overruled on May 12, 1947, and the power company was granted leave to plead. On May 26, 1947, the power company filed a motion to strike practically all the specifications of negligence from the second amended petition on the ground that they were not of acts of negligence. This motion was sustained and leave was given to the plaintiff to plead within 30 days. Leave to plead was again granted the plaintiff on February 4, 1948. No pleading was filed. On March 7, 1949, leave to file a third amended petition within 10 days was granted and such third amended petition was filed on the same day, the last entry granting leave being approved by counsel for the defendants.
On March 28, 1949, the power company filed a motion to dismiss the third amended petition for want of prosecution. The court sustained the motion and rendered judgment against the plaintiff for costs.
From that judgment an appeal was taken to the Court of Appeals, where such judgment was affirmed.
The cause is now in this court on appeal by reason of the allowance of a motion to certify the record.
Mr. Richard N. Larrimer and Mr. Ernest G. Littleton, for appellant.
Messrs. Johnson, Skelton, Kahl Horr, for appellee The Ohio Power Company. Messrs. Miller, Searl Fitch, for appellee Ideal Milk Company.
The question presented is whether the trial court after granting leave to the plaintiff to file a third amended petition, which in fact was filed the same day the leave was granted, abused its discretion in sustaining a motion to dismiss such third amended petition for want of prosecution, thereby denying the plaintiff a review of the sufficiency of her third amended petition.
The Court of Appeals, in its opinion, expressed its position as follows:
"We have examined the original petition and all of the amendments thereto, and we find no material difference in them. After the judgment of March 28, 1947, sustaining the demurrer to the amended petition, this action of the court could have properly been made the subject of review by filing a notice of appeal, which is not done. After a delay of almost two years, the plaintiff is seeking, by filing a third amended petition, to have all the procedure prior thereto made the subject of review. We do not deem it necessary to enter into a discussion of the legal questions presented to the trial court on the demurrer to the amended petition, for the reason that the trial court was correct in determining that, because of the situation which we have just outlined, there was a want of prosecution, and the case was properly dismissed."
It is true that the plaintiff could have elected not to plead further and have judgment entered against her upon the sustaining of the demurrer to her amended petition and thus on appeal could have had a review as to the sufficiency of her petition. But she chose to file a second amended petition, as she had a right to do. Upon her failure to file her third amended petition within the period of leave granted, the court could have dismissed her action for want of prosecution.
But, after the court on March 7, 1949, granted the plaintiff leave to file her third amended petition within 10 days and the plaintiff on the same day filed her third amended petition, the court could not later without abuse of discretion sustain the defendants' motion to dismiss the cause for want of prosecution because of failures in the prosecution of the case prior to the last grant of leave to file.
The Court should have overruled the motion or treated it as a demurrer to the third amended petition. If the third amended petition is insufficient, as to which question this court cannot rule in advance of such rulings by the trial court and the Court of Appeals, the trial court could have sustained the motion as a demurrer. See Hayes v. Weaver, 61 Ohio St. 55, 61, 55 N.E. 172; Miller v. Hixson, Treas., 64 Ohio St. 39, 56, 59 N.E. 749. The court could then have refused leave to plead further and rendered judgment, and the plaintiff's right to have the sufficiency of her third amended petition passed upon on review would have been preserved.
The judgment of the Court of Appeals is reversed and the cause remanded to the Common Pleas Court for further proceedings according to law.
Judgment reversed.
ZIMMERMAN, STEWART, MIDDLETON, TAFT and MATTHIAS, JJ., concur.
WEYGANDT, C.J., dissents for the reasons stated in the above quoted opinion of the Court of Appeals.