Barto v. Sioux City Electric Co.

• Decision Date: 26 January 1903
• Citation: 93 N.W. 268,119 Iowa 179
• Parties: C. A. BARTO, Appellant, v. SIOUX CITY ELECTRIC COMPANY, Appellee, and THE IOWA TELEPHONE COMPANY, Appellant
• Court: Iowa Supreme Court

93 N.W. 268

119 Iowa 179

C. A. BARTO, Appellant, v. SIOUX CITY ELECTRIC COMPANY, Appellee, and THE IOWA TELEPHONE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 26, 1903

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

PLAINTIFF had judgment by default against the Iowa Telephone Company. That company moved to set aside the default and judgment on the ground of mistake and misunderstanding between the general manager of the company and its general counsel. This motion was overruled, and the Iowa Telephone Company appeals.

Reversed.

A. J Van Wagenen for appellant.

Henderson & Fribourg for appellee Barto.

Wright Call & Hubbard for appellee Sioux City Electric Company.

OPINION

DEEMER, J.

The sole question in the case is the correctness of the court's ruling on the motion to set aside the default and judgment. The action was to recover damages for personal injuries received by plaintiff while acting as a lineman for the defendant company, due to the fact that he came in contact with an iron brace on one of the defendant's poles, which had become charged with electricity, and received a violent shock, which precipitated him to the ground, a distance of some thirty feet, and caused the injuries of which he complains. It is charged in the petition, and, we must assume, was established to the satisfaction of the court, that defendant was negl gent either in the construction or maintenance of the pole, and that plaintiff did not contribute to the injury by any negligence on his part.

The exact claim is that defendant maintained a very tall pole on one of the streets in Sioux City, on which were strung many wires attached to crossbars affixed thereto; the lower one of which was some thirty feet from the ground. These crossbars were braced with iron braces extending diagonally from the pole to the crossbars. Many months prior to the accident in question the Sioux City Electric Company, operating a light plant in said city, made an upright addition to the pole described, and strung thereon its wires. From the top of the pole, as thus extended, wires ran down to what is known as a "converter," or small iron box, and from the converter extended down until they touched one of the iron braces above described. The wires were run from the top of the pole down to the converter and beyond for the purpose of supplying an adjacent storekeeper with light for his building. The defendant telephone company knew of this situation, and notified the electric company to remove its wires, but that company failed and neglected to do so.

Plaintiff was required to make some changes in the telephone wires, and, having performed his duties, started to descend. While in the act of descending, he caught hold of one of the diagonal iron braces, and received the shock of which he complains. It seems that the brace became charged with electricity by reason of the insulation of the electric light wire having become worn by constant contact with and rubbing against the iron brace. Action was brought against both the telephone company and the electric light company. Notice of the action was served on one Clark, the local agent of the Iowa Telephone Company at Sioux City, who immediately sent the same to E. B. Smith, general manager of the company, at Davenport, Iowa. Thereafter, except as we shall hereafter state, Clark had nothing to do with the matter. Smith received the notice in due course, and took the same to Mr. E. E. Cook, the general counsel of the company, at Davenport, with whom he left the notice, together with some other papers relating to the case.

After talking the matter over, and concluding that defense should be made, it was agreed that A. A. and A. J. Van Wagenen, attorneys at law in Sioux City, Iowa should be employed to defend this action. Smith's understanding from the conversation was that Cook should notify the Sioux City attorneys of the company's desire to employ them, while Cook understood that Smith should attend to the matter. As a result of this misunderstanding, no attorneys were in fact employed to conduct the defense, and the case went to judgment as before stated. There was no thought that Cook should personally appear in the case, but it was agreed, as before stated, that local attorneys at Sioux City should look after it. Neither Cook nor Smith knew of this misunderstanding until after the judgment has been rendered against the company. The motion to set aside the default was accompanied by an affidavit of merits, and also by a duly verified answer on behalf of the telephone company, to which we shall presently make some reference.

On behalf of plaintiff it is shown that Clark had a conversation with one of plaintiff's attorneys before the action was brought, in which the attorney asked Clark to write the company regarding the case; and that, after the notice was served, Clark had a letter from the general manager about the matter, but nothing was said in that with reference to the employment of attorneys. Clark had a conversation with plaintiff before the action was commenced, in which he said that the company was not liable, and that they did not intend to pay any attention to the suit. An attorney for the electric light company also called upon Clark, and tried to interest him in the suit. But Clark said they did not wish to be brought into the case, but that he would write to the company. The company refused to take any part in the matter, and insisted that it was not liable. After the default judgment was obtained, a reporter called up Clark by telephone and informed him of the situation, and Clark responded that the company paid no attention to the matter, and he did not care to recognize it by discussing the case. He said the company had ignored it all the way through. Clark also stated that he presumed that the company knew what it was doing, and that it was probably acting under legal advice. It is manifest that Clark was unfamiliar with the situation and with legal proceedings in general, and his statements must be viewed from that standpoint. One of the agents at the home office wrote Clark, before the case was commenced, that the company would not appear in the matter of claim for damages to plaintiff. This was manifestly intended as a response to the letter written by Clark at the solicitation of the attorney for the electric light company, and referred to a settlement out of court. Smith also wrote Clark not to have any conference with this attorney, preferring to have the matter come to trial in the event the electric company did not settle.

This is practically the entire showing made in the case. With reference to Clark's connection with it after he sent the original notice to the head office in Davenport, it is doubtful if he could make any statements or admissions which would bind the company. He had nothing to do with the litigation, save to receive and forward the notice. After that was done, his connection with the case ceased, and his agency was not broad enough to enable him to bind the company by his admissions. But, should these admissions be considered, it is manifest that they do not show an intent on the part of the company to abandon all defense, and to allow a judgment to be taken against it. Throughout the entire transaction this defendant was denying liability, and all talk about ignoring the case had reference to the claim, and not to any case in court. It did not care to take any part even in an attempt at settlement, for fear this might be construed as a recognition of liability. Everything shown in evidence points so strongly in this direction that a finding to the contrary would be in the teeth of the evidence.

The only question, then, is whether or not the misunderstanding between Smith and Cook, occurring in the manner it did sufficiently excused the default, and entitled the telephone company to a setting aside of the judgment. Plaintiff insists that the failure of the telephone company to appear was due to negligence and carelessness on its part, and that it should not now be heard to complain; while the telephone company claims that it has excused the default by showing mistake, misunderstanding, and unavoidable casualty or misfortune. Defaults occurring through negligence or carelessness on the part of the judgment defendant or his attorney will not, of course, be set aside, for the law rewards the diligent, and not the careless. Moreover, one who, through...