Craddock v. Sunshine Bus Lines

• Citation: 133 S.W.2d 124
• Decision Date: 22 November 1939
• Docket Number: No. 2265-7386.,2265-7386.
• Parties: CRADDOCK v. SUNSHINE BUS LINES, Inc.
• Court: Texas Supreme Court

Page 124

133 S.W.2d 124

CRADDOCK v. SUNSHINE BUS LINES, Inc.

No. 2265-7386.

Commission of Appeals of Texas, Section A.

November 22, 1939.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Irl Craddock against the Sunshine Bus Lines, Inc., for injuries sustained by the plaintiff and his wife and damages to their automobile resulting from a collision. An order denying defendant's application to set aside default judgment for plaintiff and grant new trial was reversed and the cause was remanded, 112 S.W.2d 248, and the plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Wynne & Wynne, of Wills Point, for plaintiff in error.

Thompson, Knight, Baker, Harris & Wright, Pinkney Grissom, and Rhodes S. Baker, all of Dallas, and A. A. Dawson, of Canton, for defendant in error.

HICKMAN, Commissioner.

Judgment by default for $15,400 was rendered in favor of plaintiff in error Irl Craddock, hereinafter called plaintiff, against defendant in error Sunshine Bus Lines, Inc., hereinafter called defendant, for damages for personal injuries sustained by plaintiff and his wife and also injuries to their automobile, all resulting from a collision between the automobile in which they were riding and a bus belonging to defendant. On the day following the rendition of the default judgment a motion to set same aside and grant a new trial was filed by defendant, which motion was later amended and the amended motion overruled. On appeal the Court of Civil Appeals at Fort Worth reversed the trial court's judgment and remanded the cause with instructions to that court to vacate the default judgment and set the case down for trial on its merits in its regular order. 112 S.W.2d 248.

The suit was filed in the trial court on August 25, 1936, and at the same time two citations were issued, one to Van Zandt county and the other to Kaufman county, both citations being returnable on September 7th. The Van Zandt county citation was served on the agent of defendant in that county on the day it was issued and the Kaufman county citation was served the following day by leaving a copy thereof at the business office of defendant in that county. Defendant carried indemnity insurance with the Travelers Insurance Company, and, by the terms of the policy, the Insurance Company was obligated to defend law suits of the nature of the instant one.

In its motion for a new trial defendant alleged that after the citations were served in the manner above indicated they were sent to John H. Awtry & Company, general agents of the Insurance Company; that Awtry & Company transmitted them with a letter to the Insurance Company on August 28th; that the envelope containing the letter and citations was opened by a lady employee in the claims department and by her passed on to a Mr. Morrison, who was in charge of that department, along with other mail received on that day; that Morrison checked the letter in such manner as to indicate that it related to urgent business and was to be returned to his desk with the files on the case either that afternoon or the next day; that due to a recent hail and wind storm in Dallas, which produced 400 claims against the company, the claims department was running behind with its work, and in order to meet the situation thus created the important mail was separated from that which was not so important and the former received first attention; that in some unexplained manner, the letter transmitting the citation became mixed with the general, or less important mail after being checked by Morrison, and was not discovered until September 10, the day upon which the default judgment was rendered in Van Zandt county; that upon its discovery, Morrison immediately took the citation to the attorneys of the Insurance Company, who proceeded with dispatch to ascertain the status of the matter, and on the following day filed a motion for a new trial; and that the attorneys representing plaintiff were advised of the foregoing facts and were also advised that the defendant was willing to try the case on its merits on the day the motion was filed or on any subsequent day. Facts were alleged which, if true, constitute a meritorious defense to the cause of action. Facts were also alleged which, if true, would establish that the judgment for $15,400 is grossly excessive.

Upon a hearing of the motion evidence was offered in support of all the material allegations therein contained. It was made further to appear upon the hearing that, if the judgment by default had been set aside on September 11, and a new trial granted, the plaintiff could have obtained a trial as soon as he could have done had an answer been filed before appearance day. It was also made to appear at the hearing that one of defendant's attorneys, on the date the motion was filed, offered, on behalf of his client, to pay the plaintiff all of the expenses incurred in obtaining the default judgment. In short, it was shown, at least prima facie, that, had the default judgment been set aside and the case tried in its regular order, the plaintiff would...