DU-AL MANUFACTURING COMPANY, Plaintiff and Appellant, v. SIOUX FALLS CONSTRUCTION COMPANY, A Corporation, and Simpson‘s, Inc. d/b/a Simpson Structures, Inc., Defendants and Appellees.
No. 16518
Supreme Court of South Dakota
Decided Aug. 9, 1989
444 N.W.2d 55
Considered on Briefs May 24, 1989.
This rule would not prohibit the State from using real or physical evidence, such as fingerprints, photographs, measurements, appearance, hair, stance, body position, blood samples, and other physical evidence. Roadifer, supra. Nor would the rule prohibit officers or witnesses from testifying as to their observations of defendant‘s appearance, speech, demeanor or other observations that may be taken from him without his consciousness or cooperation. Likewise, under proper circumstances, a court can clearly require a defendant to submit to voice prints, writing samples, gesturing or other tests which require his cooperation.
To permit the State to coerce or deceive a person into incriminating oneself after asserting the privilege is improper under the
To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege “is as broad as the mischief against which it seeks to guard[.]” (citation omitted).
Id., 384 U.S. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916.
The trial court was also correct in excluding testimony concerning Meek‘s assertion of this constitutional right. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This situation is distinguished from both Hoenscheid and Neville II where the court held the refusal to provide non-testimonial evidence did not violate the privilege against self-incrimination. The refusals in Hoenscheid and Neville II did not involve assertion of a protected constitutional right.
We should affirm the trial court‘s suppression of all testimony concerning Meek‘s assertion of his right against self-incrimination and all statements made by Meek to Officer Hofeldt subsequent thereto, including the three verbal sobriety tests.
Acie W. Matthews of Pruitt, Matthews & Muilenburg, Sioux Falls, for plaintiff and appellant.
Douglas M. Deibert of Cadwell, Sanford & Deibert, Sioux Falls, for defendant and appellee, Sioux Falls Const. Co.
Carleton R. Hoy of Hoy & Hoy, Sioux Falls, for defendant and appellee, Simpson‘s, Inc. d/b/a Simpson Structures, Inc.
CASE SUMMARY
We affirm the trial court‘s dismissal for plaintiff‘s failure to prosecute. Paramount in our decision is the consideration of
PROCEDURAL HISTORY
We must be mindful that it is the plaintiff‘s burden to proceed in prosecuting the action. Potts v. Starr, 76 S.D. 91, 94, 72 N.W.2d 924, 925 (1955). In this case, Plaintiff/Appellant, Du-Al Manufacturing Company (Plaintiff), initiated an action on October 6, 1975, arising out of a 1970 contract to build a manufacturing building, with Sioux Falls Construction Company (Contractor) and Simpson Structures, Inc. (Sub-contractor), Defendants/Appellees. Plaintiff filed a discovery motion on October 22, 1975. This was the last court activity until August 26, 1988, when Plaintiff filed a Certificate of Readiness for Trial. Both defendants interposed answers but neither answer was filed until late fall, 1988. On September 19, 1988, defendants made a motion to dismiss for lack of prosecution. This triggered filings of the answers and a resistance to the motion.
INEXCUSABLE DELAY
In affirming this case, based upon the above statutes and the settled law of this state, we observe that, essentially, there is a total unexplained lack of activity in this file for a period of approximately 12 years and 10 months. Plaintiff relies heavily on a stipulation signed by the parties’ counsel on December 3, 1975. This stipulation provided for the Sub-contractor to place test patches on the roof of Plaintiff‘s building. The stipulation also provided that Plaintiff would determine if the test repair procedures were satisfactory on or before August 1, 1976. The parties did not waive their right to proceed against any other party. Even if we were to consider this stipulation to provide an excuse for delay, the fact remains that no court activity occurred for another 12 years. Further, outside of any court environment, no activity between the parties is evident between 1979 and 1987. Were we to consider that there was excusable delay from December 3, 1975 to August 1, 1976, we are still confronted with an absolute, unquestioned, inexcusable inactivity for a period of 12 years.
RATIONALE/DECISION
We note that there was some interplay of sorts between the parties pending this litigation. Briefly stated, it is this: Plaintiff/Appellant‘s president, Richard W. Viehweg, filed an affidavit resisting the motion to dismiss. He asserts that repairs
Viehweg‘s affidavit was vague in detail, but one fact may be gleaned of import: The Sub-contractor apparently stopped repairs by the end of 1979. Viehweg then asserts that failure of the roof repair effort was not discovered “until 1987 and 1988“. If, indeed, this is true, the roof apparently leaked for over 10 years before the repair process was proven a failure. This conclusion was reached when some wall damage developed. Therefore, at least seven or eight years after Sub-contractor made its last repairs, by Plaintiff‘s own account, damage to the walls of the building occurred. To tolerate a leaking roof for that long a time (Plaintiff claimed Sub-contractor was aware of continuing problems in 1981, yet made no assertion that any repairs were made after 1979), without asserting one‘s rights and to act only after water apparently damaged walls, is manifestly unreasonable. Dismissal of this action was proper.
Finding no abuse of discretion, the trial court is affirmed.
MORGAN and MILLER, JJ., concur.
SABERS, J., specially concurring.
WUEST, C.J., deeming himself disqualified, did not participate in this opinion.
SABERS, Justice (specially concurring).
I write specially to point out that the arguments of Du-al Manufacturing may be valid against Simpsons, as the sub-contractor who was making the repairs from time to time, but not against Sioux Falls Construction, as general contractor. Du-al should have reached a more detailed agreement with Sioux Falls Construction, filed same in court, and updated its status on an annual basis. Even though representatives of Du-al were dealing directly with representatives of the other companies, it remains the attorney‘s responsibility to protect the court record against dismissal for lack of prosecution. Therefore, we have no alternative but to dismiss.