(concurring in part and dissenting in part).
I concur1 in reversal for, as the opinion so well reflects, the Judge’s dismissal assumed that the plaintiff, either from defiance or neglect, repeatedly ignored or disobeyed orders of the court when, of course, as a nomadic horseman, there is no indication that he ever knew of them.
While, it is possible to read into the repeated orders an implied finding, F.R. C.P. 35, that the Judge was of the opinion the case could not fairly be tried in the absence of further medical examination (and depositions), I do not think that that took place at all. I think he, as did counsel, treated the requests as routine and thought that so long as it was ordered and not obeyed, the Judge could summarily dismiss.
This leads me to my point of departure. I think that for us now to order a trial is an intrusion into functions left by the Rules to the wise discretion of the District Judge, at least in the first instance. He ought to have the right to determine, F.R.C.P. 35, with the plaintiff not available nor any likelihood that he ever will be, whether justice reasonably requires further medical or testimonial examinations, and if so, their extent, and if not, the real limitations (not the party’s offers) which ought to be put on the case as it is tried.
He ought also to have the right to determine by the exercise of a wise discretion whether, as the Court repeatedly says, it is the plaintiff who wants a trial, or whether it is really the plaintiff’s lawyer who wants the trial. Tender as Judges, ex-lawyers, are to the interests of lawyers asserting tort litigation with a likelihood of contingent fees, it is after all the client’s case, not theirs.
*769A plaintiff certainly can abandon a case, 5 Am.Jur., Attorneys at Law, § 118, and if he has, a Judge under the Federal Rules is entitled to and ought to dismiss it. And if the litigant abandons it, the lawyer’s hope of reward is an insufficient transfusion to keep it alive.
I think this Judge ought to have the right on this record, supplemented below as fully as all parties might desire, to determine whether four years of complete silence, evaporation into eternity, or complete and untraceable disappearance of this race track camp-follower establishes that he has in fact abandoned his suit and that, not O’Toole, but his apparent counsel and the Horseman’s Welfare and Protective Society who paid out several thousand dollars of hospital bills under some private insurance arrangement are now the real litigants.
Subrogation is certainly legitimate and recognized, but if it is that, then the trial Judge with no anticipatory interference from us should determine whether it can appear under the engaging name of O’Toole or must come to Court riding under its own colors, F.R.C.P. 17(a), at least to the extent of what it has laid on the line. United States v. Aetna Casualty & Surety Company, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; cf. United Services Automobile Association v. Rus-som, 5 Cir., 241 F.2d 296; Celanese Corp. of America v. John Clark Industries, 5 Cir., 214 F.2d 551.
O’Toole may have decided the case was unjustly brought for the record indicates one of dubious liability. Or he may have forgotten about it. Or he may have, with the inveterate optimism of his band, finally selected the right horse at the right time so that money is no longer wanted or needed. Or he may be dead in fact (even though the law’s fiction at the present time gives him a few more months life under the seven years rule).
If he doesn’t want to press his lawsuit, then neither the Rules nor the supervisory powers of this Court can compel him to do so. If he is dead, then many new things come into play.
The Court ought to be able to determine who is in his courtroom — O’Toole, O’Toole’s Ghost, the Horseman’s Welfare Fund, or a lawyer pursuing a perfectly legitimate practice, but who has suffered the misfortune of having the client, the party — the only means by which the courthouse door is open — ride off into the great unknown.
Ordering a trial now in terms sketchily indicated displaces a District Judge on matters not yet determined and which we are neither suited nor empowered to determine nisi prius.
For that, I respectfully dissent.
. I do so oven though, from the point of administration, I am apprehensive that these holdings on procedural matters, inherently flexible by nature, are turned into the rigid command of the law of the Medes and Persians, cf. Cargill, Inc., v. Compagnie Generale Transatlantique, 5 Cir., 235 F.2d 240,1956 AMC 1535, merely because we have delivered it.
The Second Circuit, Fischer v. Dover Steamship Co., 2 Cir., 218 F.2d 682, 1955 AMC 1008, and other courts, Mooney v. Central Motor Lines, 6 Cir., 222 F.2d 569; Alevizopoulos v. Central American Agency, D.C.N.Y., 137 F.Supp. 689, 1955 AMC 2239, have -held that it is the duty of the client to keep in touch with his case (and lawyer) and if he does not do
so, he is charged with a “failure,” F.R.C.P. 37(b), 41(b), warranting dismissal. The Fifth Circuit encompasses many ports. Many of its district courts have extensive maritime cases involving seamen of all nations who wander over the Seven Seas and whose only address will be a next of kin, years and degrees removed. May district judges dismiss these eases as Proctors candidly inform the court that clients have vanished? Are we in each case to say to district courts that the only “relief” is not to dismiss, but to try the case? How many years must the Judge listen to lawyers repeat advices on the disappearance (here it was four years)?