Opinion
No. 71-543
Decided March 8, 1972.
Trial — Continuance — Overruling motion for, not abuse of discretion, when — Directed verdict.
APPEAL from the Court of Appeals for Muskingum County.
Plaintiff-appellee, Donna M. Cherry, was involved in an accident which occurred when the autombile she was driving collided with a freight train operated by the B. O. Railroad, defendant-appellant herein. She filed suit to recover damages for personal injuries received in that accident, and the case was originally assigned for trial on September 22, 1970.
The trial proceeded on that date, and the plaintiff was able to conclude and rest her case. One of the witnesses who testified in her behalf was her attending physician, Dr. George T. Thompson. He testified extensively, and thereafter was excused as a witness. During the defendant's presentation of its case, however, a motion for a mistrial was sustained.
Subsequently, counsel for the parties were notified that the case was reassigned for trial on November 17, 1970. That notice was mailed by the court to plaintiff's counsel on October 2, 1970.
On November 12, 1970, counsel for the plaintiff filed a motion for a continuance of the trial, stating that he had just learned that Dr. Thompson would not be able to attend the trial in person until after November 28. There was no explanation as to why the doctor was not going to be available, or could not be subpoenaed. At this time, counsel for the defendant offered to stipulate that the doctor's entire testimony from the first trial could be transcribed by the court reporter and read into the evidence as though it were a deposition. On the basis of this stipulation, and the fact that ample notice of the date of the second trial was given to plaintiff's counsel to enable him to subpoena or depose the doctor, the motion for a continuance was denied.
On the morning of the second trial, November 17, counsel for the plaintiff appeared and stated that he was not "prepared or willing to proceed," but would offer, for the record, a letter from the doctor's nurse stating that the doctor was out of town on vacation. The court allowed the letter to be put into the record as a proffer, but reaffirmed its denial of the motion for a continuance and ordered the trial to proceed. Counsel for the plaintiff, offering no further explanation of his conduct, then excused himself and left the courtroom. Upon the opening statement of counsel for defendant, the trial court directed the jury to return a verdict for the defendant.
The Court of Appeals reversed on the ground that the trial court committed a gross abuse of discretion in refusing the requested continuance.
The matter is before this court pursuant to the allowance of a motion to certify the record.
Mr. Robert L. McCarty, for appellee.
Mr. Frank J. Michelli, for appellant.
In addition to the facts of record, it was acknowledged in oral argument before this court that counsel for the plaintiff-appellee left it up to his client to contact Dr. Thompson relative to his appearance at the second trial; that counsel kept no record of and could not recall the date upon which he was notified by the trial court that the second trial was set for November 17; and that counsel failed to ascertain whether the doctor would be available to appear at the second trial until notified of that fact by his client, on November 12.
Under the facts of this case, the overruling of appellee's motion for a continuance was not an abuse of discretion.
Since the question was not raised, we refrain from criticizing the method of disposition employed by the trial court.
Rule 41 of the Ohio Rules of Civil Procedure states, in part:
"(B) Involuntary dismissal: effect thereof.
"(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him, or the court after notice to the plaintiff's counsel may dismiss the action.
"* * *
"(3) A dismissal under this subdivision and any dismissal not provided for in this rule * * * operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies."
The judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.