O'Donnell v. City & County of San Francisco

THE COURT.

These are two appeals, one by O’Donnell, plaintiff in a negligence action for injury suffered when he was hit by a bus of defendant, from the judgment of dismissal of his action, because of failure to bring it to trial within five years after he filed it, and one by Pacific Employers Insurance Company, workman’s compensation carrier of O’Donnell’s employer and intervener in O’Donnell’s action, claiming costs of treatment and temporary compensation benefits paid and to be paid to 0 ’Donnell, from the judgment of dismissal

[65]

of its action in intervention because of failure to bring it to trial within two years after said action was filed. The facts are undisputed.

O’Donnell’s complaint was filed February 20, 1950, and the answer March 21, 1950. On March 24, 1950, plaintiff filed memorandum to set cause for trial demanding jury trial, but the case was dropped off calendar because a police witness was not available. The complaint in intervention was filed June 4, 1952, and answer to it filed by the City and County July 2, 1952. Only on April 30, 1954, did the attorney of intervener, after consultation and in accord with the attorney of plaintiff, file a memorandum to set cause for nonjury trial. Calendar to set such cases was announced for May 11,1954, but appellants were not represented at that time and the case went off calendar. A new memorandum to set was filed by intervener on August 2, 1954. Defendant on August 5, 1954, demanded jury trial. On March 8, 1955, the case was called for setting and the trial set for April 7, 1955, but on March 9, 1955 defendant moved to dismiss both the complaint and the complaint in intervention, an affidavit stating as prejudice to defendant by the delay, that since the accident on November 21, 1949, on which both actions were based, one of three defense witnesses had died, one could not be located anymore and that the motorman involved in the accident had resigned. The motion was heard on April 1, 1955, and granted by minute order of the same date. Judgment of dismissal was entered April 6, 1955. The notice of appeal of plaintiff was filed on May 24, 1955, that of intervener on June 7, 1955.

1. Appeal of Plaintiff.

It is not disputed that the dismissal under the five-year statute of Code of Civil Procedure, section 583, is mandatory where applicable. Appellant, however, relies on the settled rule of our cases, that the time during which going to trial was impossible or impracticable and futile is to be disregarded,