Caldwell Oil Co. v. Hickman

• Decision Date: 18 February 1925
• Docket Number: (No. 6840.)
• Citation: 270 S.W. 214
• Parties: CALDWELL OIL CO. v. HICKMAN et ux.
• Court: Texas Court of Appeals

270 S.W. 214

CALDWELL OIL CO. v. HICKMAN et ux.

(No. 6840.)

Court of Civil Appeals of Texas. Austin.

February 18, 1925.

Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.

Action by Frank Hickman and wife against the Caldwell Oil Company. From an order overruling defendant's motion to set aside a default judgment for plaintiffs, defendant appeals. Affirmed.

Jno. N. Gambrell, of Lockhart, for appellant.

BLAIR, J.

This is an appeal from an order overruling a motion to vacate and set aside a default judgment. The following is the history of the case:

On October 11, 1923. Frank and Annie Hickman, husband and wife, and Frank Hickman as next friend of their minor son, Hubert Hickman, sued Caldwell Oil Company, a corporation, for damages for personal injuries sustained by Hubert Hickman while in its employ as a derrickman drilling an oil well. He was injured by falling 70 feet from the elevator of the derrick to the derrick floor, which injuries were alleged to be serious and permanent, and the direct and proximate results of certain alleged acts of negligence of appellant's employees. The parents sought $1,800 damages for themselves, and for the minor son $10,000 was sought.

On October 11, 1923, citation issued out of said cause, commanding the sheriff or constable to summon "Caldwell Oil Company, a Texas corporation, with W. H. Kokernot as president, and E. B. McKean, secretary and treasurer, upon whom service may be had," to appear at the regular term, naming it, being the 22d of October, 1923, to answer the cause; and further commanding, "And you will deliver to each of said defendants, in person, a true copy of this citation." On the same day, October 11, 1923, the citation was served upon E. B. McKean, secretary and treasurer, and return made and filed in the district court October 26, 1923.

November 3, 1923, judgment by default was rendered for $6,000 against appellant, upon a hearing before the court, a jury being waived. allotting $5,000 to the minor and $1,000 to the parents.

On November 14, 1923, appellant filed its motion to vacate and set aside the default judgment, and asked permission to file its answer to the suit. November 17, 1923, appellees answered the motion, and on the same day appellant filed its rejoinder to the answer of appellees. The pleadings of all parties were sworn to, and certain facts alleged by appellant were set forth in affidavits attached as exhibits to its motion. The court heard the pleadings, the evidence, and argument of counsel on November 17, 1923, the last day of the term of court at which the judgment was rendered, and overruled the motion to vacate and set aside; hence this appeal.

Appellant principally contends that even though citation may have been legally issued and served upon it in time to have required it to appear and defend the suit at the October term, 1923, that such service was under circumstances excusing it in not answering, and that equity and justice, under the facts and circumstances adduced on the trial of the motion to vacate and set aside the default judgment, demand that it be set aside and vacated; a meritorious defense or defenses to appellees' cause of action having been pleaded and shown in support of the motion to vacate.

Appellant pleaded first as a defense to the cause of action asserted its membership in the Texas Employers' Insurance Association; that Hubert Hickman had notice of its membership and good standing in said association and accepted employment on such terms; and that under the laws of Texas he must look solely for any damages to such association. Appellant also pleaded facts constituting a defense to appellees' common-law action for damages. It also pleaded the excessiveness of the damages awarded. A meritorious defense to the suit was therefore alleged. Sufficient proof on the motion was made to sustain these defenses.

As excusing it of negligence in failing to answer though legally served with citation, the following facts were pleaded and proved: E. B. McKean, secretary and treasurer of appellant corporation, made the following affidavit concerning the service of citation upon him:

"I was served with a copy of this citation on October ____, A. D. 1923, by ____, constable of Prairie Lea precinct, and after reading it I saw it commanded him to summon W. H. Kokernot as president and myself as secretary and treasurer, and I told him I thought this citation should be served on W. H. Kokernot. He said his instructions were to serve it upon me and I accepted the copy of the citation.

"At the time I did not attach any importance to the citation for the reason that I took no active part in the management of the corporation, and as W. H. Kokernot as president was also named in the citation, I thought of course they would also serve him with citation, and I did not communicate to Mr. Kokernot or any other person connected with the corporation the fact that I had been served with this citation.

"Soon thereafter I left Prairie Lea and went to Mexico, where I have been until my return on Thursday, November 8th. On the morning of November 9th, I was in Luling when W. H. Kokernot and J. W. Rainbolt accosted me and asked if I had ever been served with citation in the case of Hickman v. Caldwell Oil Company, and I replied in the affirmative and later obtained and delivered to Mr. Rainbolt the copy of citation which was delivered to me by the officer and which I attach to this affidavit."

W. H. Kokernot, the president of defendant corporation, made the following affidavit in support of the motion to vacate the judgment:

"A short time after the accident, I was notified by Slater & Carter, attorneys of Luling, that they held an assignment of an undivided one-half interest in the claim of Hubert Hickman for injuries sustained while at work for the company.

"A few days later, Mr. J. W. Rainbolt, whom I have always employed to attend to my personal legal needs and also for legal services connected with any concern over which I had control, informed me that Mr. Carter, attorney for Hubert Hickman, had called upon him regarding obtaining a settlement with the company for injuries alleged to have been sustained by his client, and that he had informed Mr. Carter that was a question that would have to be taken up with the company which carried our employers' liability insurance. He also assured me that the case would not come to trial until the special term of court in Lockhart in January, called especially for the trial of civil cases, stating that Mr. Carter had assured him of that fact.

"Later Mr. Rainbolt told me he had heard suit had been filed, but this was after court had been called in session at Lockhart, Tex. I assured him I had been served with no notice of this suit, and he then told me of his agreement with Mr. Carter to make the insurance company a party at the October term of court so as to avoid a continuance at the January term. He requested me to ascertain if by any chance service had been had on our secretary, E. B. McKean. I immediately made inquiry, and after ascertaining that Mr. McKean had gone to Mexico, I reported that fact to Mr. Rainbolt, and he then expressed to me the assurance that no service had been had and that the suit had only been filed by Slater & Carter in accordance with the agreement of Mr. Rainbolt with Mr. Carter that if the suit were filed before the October term of court he would file such an answer that the case would be ready for trial in January.

"I dismissed the matter from my mind and made no preparations for defense of the cause of action, as I knew we had plenty of time before the January term of court. I received my first notification of the rendering of the judgment on the evening of October 8, A. D. 1923, and immediately employed attorneys to set aside the judgment.

"Even had I known that proper service had been had and that plaintiffs had been demanding trial, I would have not been ready for trial, relying upon the statement of Mr. Carter that the case would not be tried until the January term of court and from the assurance of Mr. Rainbolt that the civil docket of the district court in Caldwell county was in such a crowded condition that there would be no chance for a trial."

Kokernot also swore that it was generally known that he was in charge of the property of appellant in Caldwell county.

The attorney, J. W. Rainbolt, by affidavit attached to the motion to vacate the judgment, swore:

"I have been a practicing attorney at Gonzales, Texas, for 23 years. A short time prior to the convening of the October term of district court at Lockhart in Caldwell county, Tex., Mr. Carter, of the firm of Slater & Carter, attorneys for the plaintiff in cause No. 6641, styled Frank Hickman et al. v. Caldwell Oil Company, called at my office in Gonzales and discussed with me the claim of Hubert Hickman, alleged to have been injured while working for the Caldwell Oil Company. He stated that he would like to make a settlement with the company for damages sustained by his client.

"I stated to him that I had no authority to discuss a settlement with him, inasmuch as I knew nothing about the accident or the extent of the injuries, and in addition that the company had not employed me in this particular case; but I presumed would do so, if suit was filed, as they customarily employed me when in need of legal services. I also told him I did not think the officers of the corporation would consider a settlement of the cause of action, as they were protected by a policy of insurance issued in accordance with the Employers' Liability Act. He then stated that he wanted to file suit at the October term of court and was undecided as to whether to sue the Caldwell Oil Company alone or join the insurance company in the proceedings. He then stated also that on account of the short time intervening before the convening of the October term of court,...