Burroughs v. Bob Martin Corp.
| Decision Date | 03 June 1975 |
| Docket Number | No. 47160,47160 |
| Citation | 536 P.2d 339,1975 OK 80 |
| Parties | Jimmy R. BURROUGHS, Appellant, v. BOB MARTIN CORPORATION and Rent It Company, Inc., Appellees. |
| Court | Oklahoma Supreme Court |
Jake Hunt, Jack S. Dawson, D. L. Cooley, III, Oklahoma City, for appellant.
Walter D. Hanson, of Hanson, Peterson & Tompkins, Inc., Oklahoma City, for appellee, Bob Martin Corp.
Robert P. Hall, of Cassil, Jackson & Hall, Oklahoma City, for appellee, Rent It Co., Inc.
Jimmy R. Burroughs (Appellant) appeals from a judgment vacating default judgments rendered for him for damages because of personal injuries and against Bob Martin Corporation (Martin) and Rent It Company, Inc., (Rent)
On March 9, 1973, Appellant filed suit for damages for personal injuries against Martin, Rent, and the Black and Decker Manufacturing Company. Black and Decker is not involved in this appeal. Appellant's petition alleged Black and Decker manufactured an electrically operated tool, known as an electric screw-gun; that the screw-gun was shipped to Martin and Rent and that they sold it to a concern for which Appellant worked; and that while Appellant was using the screw-gun, he received an electric shock and fell from a scaffold and was injured. Summons was served upon Martin and Rent, but they made no appearance, filed no pleading, and were in default. On August 28, 1973, default judgment was rendered against Martin and Rent, and each of them, for $219,000.00.
Martin and Rent, on October 11, 1973, and November 1, 1973, respectively, moved and petitioned the court to vacate the default judgments, on the ground, inter alia, that unavoidable casualty and misfortune prevented them from defending the action, and that they had a good defense to said action.
On December 19, 1973, the lower court heard the petitions to vacate and the evidence informed the court as follows:
As to Martin:
That its local service agent forwarded the summons and petition to Martin's attorney in Washington, D.C., where it was received March 11, 1973; that he contacted Martin (Corporation) and requested information and was informed the type of equipment involved was never sold by Martin to Rent; that he (the attorney) notified the agency which sold product liability insurance to Martin, and mailed all correspondence to that agency; and that he had no further knowledge until October 10, 1973, when he received a telephone call from the insurance company. Martin further produced evidence that the agency mentioned above, to which papers were purportedly mailed by the attorney, could find no evidence of having received the papers mentioned and knew nothing of the accident or suit until it received calls from the office of Martin on September 27th, and October 10, 1973.
As to Rent:
A representative of Black and Decker and an agent of Rent stated collectively that in early March, 1973, the summons and petition served on Rent was delivered to the local Black and Decker representative, who stated that attorneys for Black and Decker would take care of the matter; that the summons and petition were delivered to Black and Decker's local service center and given to a person there, who was to forward them to a person in Towson, Maryland, for normal processing; and that it was understood Black and Decker attorneys would defend for all parties.
It appears that the default situation was forcibly brought to the attention of Martin and Rent when executions were issued on the judgments.
The Judge of the lower court stated, in pertinent part, that it was his opinion Martin and Rent were guilty of inexcusable negligence in handling their affairs pertaining to the lawsuit, and were 'not entitled of right to any relief;' but the court was mindful the law did 'not favor defaults or forfeitures, * * *,' and that the court was clothed with a great deal of authority to exercise discretion in these matters. The court then stated Martin and Rent should be let in to defend by vacating the default judgments, but that they should jointly pay a.$1000.00 attorney fee, assessed as costs, and the court costs by January 4, 1974, and if this were done the default judgments would be vacated.
Martin and Rent complied with this proviso and the default judgments were vacated.
Appellant contends the trial court did not have any discretion to vacate the default judgments when the defaulting parties were guilty of inexcusable neglect, even though they may have a defense to the action.
From our examination of Oklahoma decisions we do not find where we have ever adopted or applied this strict and categorical rule to situations involving vacations of default judgments. We have always emphasized the discretion vested in the trial judge to vacate default judgments where justice would better be served by permitting a litigant to have his 'day in court.' Also, members of this Court have on occasion been more impressed with the need to grant relief to a defaulting litigant than the lower court believed the party deserved. In the following cases we reversed the lower court's refusal to vacate default judgments: Haskell v. Cutler, 188 Okl. 239, 108 P.2d 146; First Nat. Bank of Okmulgee v. Kerr, 165 Okl. 16, 24 P.2d 985; Shuler v. Viger, 103 Okl. 129, 229 P. 280; Hamburger v. Fry (Okl.), 338 P.2d 1088.
In Singleton v. LePak (Okl.), 425 P.2d 974, the action was for damages for personal injuries. The summons was served on the defendant by serving a member of his family over the age of 15, to-wit, a 16 year old son, who did not give it to the defendant. Default judgment was rendered for $43,460.00 and upon petition to vacate being duly filed, the default judgment was vacated. We affirmed, because of the circumstances, including the amount of the default judgment rendered.
In Latson v. Eaton (Okl.), 311 P.2d 231, the defendant was served by delivering the summons to his wife, who permitted the summons to become 'mixed with the other papers in her home, and that she never thought to give it to her husband.' Default judgment was rendered against the defendant for $36,900.00, and the trial court denied defendant's application to vacate. We reversed on the grounds, inter alia, that no right of a stranger was involved, and that the application...
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