Davis v. Glade, No. 51581

• Court: United States State Supreme Court of Iowa
• Writing for the Court: THOMPSON
• Citation: 257 Iowa 540,133 N.W.2d 683
• Parties: Gene DAVIS, Appellant, v. Fred H. GLADE, d/b/a Lake Canyada, Appellee.
• Docket Number: No. 51581
• Decision Date: 09 March 1965

Page 683

133 N.W.2d 683 257 Iowa 540 Gene DAVIS, Appellant,
v.
Fred H. GLADE, d/b/a Lake Canyada, Appellee. No. 51581. Supreme Court of Iowa. March 9, 1965.

Page 684

[257 Iowa 541] Peart, Lincoln & Wells, Dvavenport, for appellant.

Newport, Wine & Schebler, Davenport, for appellee.

THOMPSON, Justice.

On June 13, 1962, the plaintiff filed his petition, charging that the defendant owned and operated an amusement and recreational park in Scott County, and alleging certain negligences in the maintenance and inspection of a part of said facility known as Lake Canyada, and in failing to warn users of a defective condition. It was further charged that because of the specified negligences the plaintiff was injured, and damages were asked.

Notice of suit was duly served upon the defendant, who promptly took it to his attorneys, Doerr, Dower and Rehling, in Davenport, for attention. Within a few days after the service of the notice, about June 19, 1962, Mr. Dower contacted plaintiff's attorney who had the matter in charge, Mr. H. J. Lincoln, and told him that Mr. Rehling of their firm would handle the case. Either at this time, or a few days later, Mr. Dower told Mr. Lincoln that he had sued the wrong party; that a corporation[257 Iowa 542] known as Canade, Inc., was the owner and operator of Lake Canyada. Mr. Dower testified, and Mr. Lincoln admits, that at this time Mr. Lincoln assured Mr. Dower that he would not take default against the defendant.

The matter stood in this fashion, with no appearance entered by the defendant, for some fifteen months; when Mr. Lincoln set the case for trial and took a default and judgment against the defendant in the sum of $10,000.00. This was on September 18, 1963. On September 27 following the defendant filed his motion to set aside the default, supported by affidavits and alleging a meritorious defense. The trial court after hearing, granted the motion and set aside the default and judgment. Upon application of the plaintiff we granted leave to appeal from this order before final judgment.

I. As the plaintiff concedes in his brief, if nothing more appeared than that his counsel had promised that no default would be taken, there would be no question

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but that the order of the trial court was correct. But he thinks other circumstances shown in the record require a holding that the court's discretion was abused. Some reference to these matters must be made.

Chiefly, the plaintiff depends upon a letter written by the then counsel for the defendant to the Maryland Casualty Company under date of June 18, 1962. A copy of this letter was sent to plaintiff's counsel at the time it was written. It is now urged that in some manner this absolved counsel of his promise that he would not take default; perhaps that it indicated defendant's original attorneys, to whom he had made the promise, were no longer in the case. We do not think the letter is susceptible of this construction. It enclosed the notice of suit, stated that Doerr, Dower & Rehling had been advised that plaintiff's counsel had been in negotiation with an agent of the casualty company in regard to settlement, and closed: 'Kindly acknowledge receipt of the enclosure and confirm that defense will be handled through you.'

At the hearing on the motion to set aside the default there was evidence that the Maryland Casualty Company had replied, under date of June 26, 1962, pointing out that it insured only the corporation, that the defendant Glade was not covered by [257 Iowa 543] its policy, and in effect declining to furnish a defense for him. There was evidence, denied by Mr. Lincoln, that the substance of this letter was communicated to him. Where there is controverted evidence in a hearing such as this, the finding of fact of the trial court is binding on us. However, the court in its ruling made no definite specific finding on the question whether Mr. Lincoln was advised that the insurance carrier would not defend for Glade.

But we do not find that the letter from Mr. Dower to the casualty company was in fact a withdrawal from the case by the defendant's counsel who had first contacted Mr. Lincoln and had received his assurance. The letter goes not farther than to inquire whether the casualty company would assume the defense; and there seems to have been no good reason to think that Doerr, Dower and Rehling were abandoning their client until at least they were advised that someone else had been employed and would appear.

Mr. Lincoln, although frankly admitting that he promised no default would be taken, also testified that when advised he had attempted to lay the wrong party by the heels, he said that he...