JONES, Circuit Judge.
The appellant here, William S. Hinson, was plaintiff in the District Court where he brought a suit under the Louisiana Direct Action Statute. LSA-R.S. § 22:655. He alleged that while he was in his automobile, which was stopped behind a bus which was discharging passengers, his car was struck from behind by a truck of the defendant's insured. Negligence was alleged and damages were sought. The defendant insurance company asserted that its insured was not negligent, averred that the plaintiff was guilty of contributory negligence and denied liability. On motion of the defendant an order was entered directing the plaintiff to submit to a physical examination by a designated doctor at a time and place fixed in the order, "or at such other time and date as set by this Honorable Court." The plaintiff failed to appear at the specified time and place. A pretrial was thereafter held and the trial was continued to be reassigned. On the
The plaintiff met the defendant's memorandum with a memorandum of his own. In it the plaintiff says he was not advised of the court's order until after the date fixed in it had expired. The memorandum states that the plaintiff was confined to his bed with influenza on January 20, 1959. The court entered its order dismissing the suit with prejudice and at the cost of the plaintiff. The plaintiff moved for a new trial and rehearing. More memoranda and countermemoranda were filed. The plaintiff gave notice of the taking of the testimony of the plaintiff and of Dr. Charles Genovese. The defendant opposed the taking of the depositions upon notice. The depositions were taken and filed in the cause. The deposed testimony of the plaintiff was that he was ill in bed with the flu on January 19 and 20, 1959. To the same effect was the deposed testimony of Dr. Genovese who attended the plaintiff in this illness. The motion for a new trial and for a rehearing was denied. This appeal followed. In the defendant's motion to dismiss grounds were assigned in addition to that of the plaintiff's failure to appear for examination. None of the other grounds are here discussed or relied upon. We therefore consider only whether the plaintiff's cause was properly dismissed on the ground that he failed to appear for examination. Much of the rather small record in this case is composed of charges and insinuations of each of the parties against the other. These do not require comment.
The Rule provides:
So also it is provided:
An order of dismissal with prejudice is a rather drastic remedy. Such an order has been referred to as punitive. Fisher v. United States Fidelity & Guaranty Co., 7 Cir., 1957, 246 F.2d 344. The Advisory Committee in its note to Rule 37 recognizes the impropriety of using such measure as a punishment for contempt.
The plaintiff asserts that, at the time he was to appear, he was ill at his home some distance from the place where he was to appear, and that he should have been permitted to make proof in support of this assertion in order to excuse his failure to present himself for examination on the dates fixed by the defendant. The rule permits the sanction to be imposed only in the event the party "refuses" to comply with the order. A mere failure, if excusable, would not be a refusal. The failure must have been willful to subject the party to the consequence of his noncompliance. Although the excuse may have been rather tardily tendered we think it was entitled to the court's consideration. Gill v. Stolow, 2d Cir., 1957, 240 F.2d 669.
The judgment of the district court will be reversed and the cause remanded for further proceedings. It is expected that the plaintiff will be prepared for a prompt compliance with any order which the court may hereafter make for him to submit to an examination.
Reversed and remanded.