DONALD W. MELTON, APPELLANT,
v.
MARITIME OVERSEAS CORPORATION, APPELLEE
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The court held that the trial court did not err in dismissing the case with prejudice when the plaintiff's counsel refused to proceed to trial due to the plaintiff's absence.
Plaintiff sued for personal injuries. His counsel was notified of the trial date, but the plaintiff was at sea and unavailable. Counsel's motions for …
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PER CURIAM:
Donald W. Melton, plaintiff below, a merchant seaman, sought to recover damages for personal injuries allegedly sustained while employed and serving on board defendant’s vessel.
In May 1969, at a pretrial conference, the case was set for trial on November 25, 1969. Between these dates Melton’s counsel wrote four letters to advise and remind plaintiff of the trial date, the fourth letter having ^been sent on November 4, 1969. The record discloses that these communications were received.
Immediately prior to the trial date plaintiff’s counsel learned for the first time that plaintiff was then on board a vessel, unidentified by name, which had left California about twelve days prior to the trial date. This information was supplied by Melton's parents.
On November 24, 1969, plaintiff’s counsel orally moved the district court for a continuance because of plaintiff’s absence. The motion was overruled and the court advised counsel to proceed with the trial on the following day. On November 25 counsel filed a formal motion for a continuance or in the alternative a motion for dismissal without prejudice; also a supporting affidavit. Both motions were denied. Plaintiff’s counsel declined to proceed to trial in the absence of his client and the court thereupon dismissed the case with prejudice, awarding costs to the defendant.
We affirm the judgment below. Davis v. United Fruit Company, 402 F. 2d 328 (2 Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 869, 21 L.Ed.2d 777 (1969); Torino v. Texaco, Inc., 378 F. 2d 268 (3 Cir. 1967); Jameson v. DuComb, 275 F. 2d 293 (7 Cir. 1960).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Davis v. United Fruit Co., 402 F.2d 328 (2d Cir. 1968)
- Gregory v. Illinois, 393 U.S. 1085 (U.S. 1969)
- Henzel v. Florida, 393 U.S. 1085 (U.S. 1969)
- Torino v. Texaco, Inc., 378 F.2d 268 (3d Cir. 1967)
- Jameson v. DU Comb, 275 F.2d 293 (7th Cir. 1960)