Callahan Const. Co. v. Williams

• Decision Date: 12 November 1914
• Citation: 160 Ky. 814,170 S.W. 203
• Parties: CALLAHAN CONST. CO. v. WILLIAMS.
• Court: Kentucky Court of Appeals

170 S.W. 203

160 Ky. 814

CALLAHAN CONST. CO. v. WILLIAMS.

Court of Appeals of Kentucky.

November 12, 1914

Appeal from Circuit Court, Whitley County.

Action by Alec Williams against the Callahan Construction Company. Judgment having been recovered by plaintiff, defendant applied for a new trial for accident or surprise, and, from an order denying the same, appeals. Affirmed.

Tye Siler & Gatliff, of Williamsburg, for appellant.

Henry C. Gillis, J. B. Snyder, and B. B. Snyder, all of Williamsburg, for appellee.

NUNN J.

This action was instituted against the construction company to recover $3,000 damages for personal injury. Summons was served August 11, 1913, and at the September term of court, viz., September 24th, an order was entered taking the allegations of the petition as true no answer having been filed. On September 30th a jury was impaneled, and, after hearing the evidence in proof of damages, they returned a verdict for $3,000, the amount claimed. Judgment was entered thereon. During the same term of court, but after more than three days had passed appellant filed motion for new trial, with affidavits in support of the ground set up. The ground relied upon is accident or surprise which ordinary prudence could not have guarded against. Civil Code, § 340, subsec. 3.

Since this was a default judgment, and the motion for a new trial was filed during the same term of court at which the judgment was rendered, the motion does not come too late, although more than three days after judgment. Riglesberger v. Bailey, 102 Ky. 608, 44 S.W. 118, 19 Ky. Law Rep. 1660; Southern Ins. Co. v. Johnson, 140 Ky. 485, 131 S.W. 270.

The following are the facts, appellant says, that constitute the accident and surprise, which, within the meaning of the Code, will authorize a new trial: Appellee was a member of a crew constructing a new railroad in Whitley county at the time of the injury, and R. L. Rogers was superintendent of the work and chief officer of the corporation in that county. The summons was served on Rogers. It is not now contended that Rogers was not the proper officer upon whom to serve process, nor is any question made as to the regularity of the service, and, in effect, it is conceded that, if appellant desired to defend, it was its duty to answer in due course.

But appellant had theretofore designated another agent in this state with an office in the Lincoln Building, Louisville, Ky. upon whom process might be served. As held in New South Brewing & Ice Co. v. Price, 50 S.W. 963, 21 Ky. Law Rep. 11, and Cumberland Co. v. Lewis, 108 S.W. 347, 32 Ky. Law Rep. 1300, it is sufficient to serve summons on defendant's chief officer or agent in the county where the action is brought, although at the time defendant corporation has designated, under the provisions of Kentucky Statutes, 571, an agent in another county upon whom process can be served. The statute does not annul the Code provisions with reference to service of process.

Appellant does not seek to again raise that question, but says that it had been advised by counsel that valid service could only be had upon its designated agent, and, in good faith acting upon that advice, had already instructed its local agent that service upon him was not service upon the corporation, and, for that reason, he did not notify the corporation that summons had been served upon him or that the action was pending. After judgment had gone against it by default, it learned to its surprise that the advice of counsel with reference to service was erroneous, and that is the surprise it now relies upon to secure a new trial. By affidavit accompanying the motion it appears that appellant is a Tennessee corporation, not familiar with Kentucky laws, and, acting upon advice of Kentucky counsel, it had designated a statutory agent, and Rogers, at the time summons was served on him, notified the sheriff that he was not the proper person for service, and that, as the outgrowth of a former suit against the company in the same county by another party, it had notified both the sheriff and circuit clerk of that county that service upon its local agent was not sufficient, and would not bind the corporation.

In view of the instructions theretofore given Rogers, the corporation had justified him in the belief that no action was pending and that process served upon him was, in fact, no service. If it be said that he was negligent in failing to notify his principal, then that negligence would no more constitute a ground for new trial than would the negligence of the same officer constitute a defense to an action in damages against the master for personal injuries sustained as the result thereof.

Appellant's claim that it is entitled to a new trial because of the mistaken advice of its Kentucky counsel runs counter to all precedent in this state. If one is injured or sustains loss through negligence or ignorance of his attorney, there is no reason for transferring any of the loss or damage to the adverse party, who was innocent of any wrongdoing in that connection. One of the first cases on the subject is Patterson v. Mathews & Wife, 3 Bibb, 80, where it was held that a new trial should not go for a defendant against a default judgment entered through negligence of his attorney, although the defendant had the misfortune to be entirely blind, and therefore was incapable of giving personal attention to his defense. The court said:

"It is a settled rule that a new trial ought not to be awarded on account of the neglect of the agent or attorney of the party applying for it; for such neglect is equivalent to the neglect of the party himself, and he may have a remedy over against his agent or attorney. This rule, as well as the reason upon which it is founded, seems to be as applicable to the present case as to any

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