Dearing v. Speedway Realty Co.
| Citation | 40 N.E.2d 414,111 Ind.App. 585 |
| Decision Date | 23 March 1942 |
| Docket Number | 16690. |
| Parties | DEARING v. SPEEDWAY REALTY CO. |
| Court | Court of Appeals of Indiana |
O B. Hanger and Connor D. Ross, both of Indianapolis, for appellant.
Means & Buenting, of Indianapolis, and Edgar Blessing, of Danville, for appellee.
By this action the appellant, Robert Dearing, seeks to vacate a judgment that was rendered by the Hendricks Circuit Court on December 5, 1928, in a cause wherein the appellant by his father, Curtis L. Dearing, as next friend, was plaintiff, and the appellee, Speedway Realty Company, was defendant.
The appellant is relying upon the overruling of his motion for a new trial as error, and as grounds thereof upon which he relies, he specifies the following:
The cause was tried by the court, which made a general finding that the judgment theretofore rendered in the cause was a valid and subsisting judgment and should not be set aside and thereon the court rendered judgment that the appellant take nothing by his complaint in this action.
The amended complaint of appellant upon which the cause was tried is extensive and we will not attempt to set forth in detail the allegations thereof. A summarization of the principal matter shown thereby is as follows:
(1) On June 18, 1927, the appellee owned a building situated in the city of Indianapolis, and attached thereto was a fire escape which extended over a public alley; that because of the negligence of appellee in the maintenance of such fire escape in described particulars, the lower flight thereof fell upon appellant, who was then an infant of the age of ten years while he and other children were playing in such alley, and thereby appellant was severely injured.
(2) That on August 19, 1927, while appellant was in a hospital as a result of such injury, an action was filed in his name by his father, as next friend, against the appellee to recover damages therefor; that issues were made therein and the cause was sent on change of venue to the Circuit Court of Hendricks County for trial; that appellant was a minor when such action was filed and did not attain his majority until August 8 1938.
(3) That the attorneys who represented the appellant in such action were negligent in that they failed to make a good faith effort to prosecute the action; that they willfully, carelessly and fraudulently, in disregard of the rights and interest of the appellant, permitted the cause to come up for hearing without the presentation of any evidence concerning appellant's injuries; that instead of acting and conducting themselves in the interest of appellant, they acted solely in the interest of the defendant, and willfully, carelessly and fraudulently agreed to a perfunctory and informal hearing to be held without the introduction of any testimony, and on December 5, 1928, they appeared in the absence of plaintiff, and in the absence of the next friend, with attorney of the defendant, before the Judge of the Hendricks Circuit Court and requested such judge to enter a consent finding and judgment in favor of the plaintiff in the sum of $500 for the purpose of foreclosing the right of the appellant to a meritorious hearing of his cause.
Many other general allegations charging attorneys of appellant with actual fraud and breach of faith are contained in the pleadings, among which is a charge that attorneys for appellant cooperated with attorneys for appellee in a fraudulent and collusive scheme to deprive the appellant of a just, legal and adequate hearing and judgment commensurate with the injuries sustained by him as a result of such action, and that the acts and conduct of such attorneys were designed to use the court and its judicial power as a tool and device of fraud and deception to bar the appellant's rights, and that the court was misled and deceived thereby, and by reason thereof the judgment was a nullity.
(4) The prayer of such complaint was that the judgment be declared void and that it be set aside and that the plaintiff be permitted to proceed with his cause of action for damages.
This cause was tried in the Hendricks Circuit Court and a judgment rendered on December 15, 1939. The following observations are made concerning the evidence that was introduced at such trial:
(A) That there was conflict in the evidence concerning the legal liability of appellee for the injuries and resultant damages to appellant. While appellant introduced evidence to show negligence of appellee in the maintenance of a rope or cable by which the lower flight of the fire escape was operated, and claimed that because of such negligence the lower flight of the fire escape fell upon appellant, crushed him to the pavement, broke his leg and pelvis and severely and permanently injured him, the appellee introduced evidence which tended to show that the appellee was not negligent in the maintenance of the fire escape, and that the injuries to appellant had resulted from his own acts, or the acts of an older boy with whom he was playing and who pulled down the lower flight of the fire escape and thereby caused his injuries.
(B) That the injuries to appellant were severe and permanent; that as a result thereof medical and surgical attention of the value of from one thousand to fifteen hundred dollars was necessary; that a hospital bill for four hundred ninety-one dollars was incurred; that appellant was confined to the hospital for a long period of time and lost much schooling; that one of his legs was shortened and other detrimental and painful physical conditions resulted.
It is a fair conclusion from the evidence concerning injury, which was without conflict, that damages in the amount of $500 was not full or adequate compensation therefor.
(C) That the attorneys for appellant who represented him in the particular action wherein a judgment for $500 was rendered, acted in good faith and did what they thought was for the best interest of appellant; that they had made an investigation of the facts connected with appellant's injury and doubted the legal liability of appellee therefor; that they had obtained from the counsel of appellee an offer to pay the sum of $500 to appellant, and the sum of $400 to the father and mother of appellant for loss of his services; that they advised the father of appellant to accept such offer, and that he agreed and made no objection as to the amount thereof. That following such agreement an attorney representing the appellant and an attorney representing the appellee appeared in the Circuit Court of Hendricks County on December 5, 1928, and that such court then made a general finding and rendered a judgment as follows:
That after such judgment was rendered Curtis L. Dearing, the father of appellant, was appointed his guardian by the Probate Court of Marion County, and thereafter he appeared in the office of the Clerk of the Hendricks Circuit Court and as such guardian receipted for and collected such judgment. Appellant and his father and mother testified that they were not present in the Hendricks Circuit Court on December 5, 1928, when the foregoing judgment was rendered, and the father of appellant testified that he did not procure any witnesses for such hearing, but there is nothing in the record to show what was done or was not done in such court when the judgment was rendered. Appellant introduced no evidence whatever concerning the actual proceedings or the nature or extent of the hearing preliminary to the rendition of such judgment. The record discloses that the attorney for appellee, who then appeared, was deceased, and attorney for appellant, who then appeared, had suffered a paralytic stroke and was unable to testify.
Appellant admits that the record shows no fraud practiced upon the Hendricks Circuit Court by appellee or its counsel, or by any of the counsel of appellant that induced such court to enter the judgment of December 5, 1928. He also admits that there was no evidence which indicated that his attorneys did not act in good faith in connection with the settlement of his cause of action and the entry of such judgment. He is contending that the evidence produced at the last trial was sufficient to show without contradiction that the judgment of December 5, 1928, was a consent judgment, following a compromise of appellant's action, that was entered without hearing and without a judicial determination of whether the settlement was beneficial to appellant, and that because of such facts constructive fraud has been established which required the Hendricks Circuit Court to vacate...
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Dearing v. Speedway Realty Co.
...111 Ind.App. 58540 N.E.2d 414DEARINGv.SPEEDWAY REALTY CO.No. 16690.Appellate Court of Indiana, in Banc.March 23, Appeal from Hendricks Circuit Court; Horace L. Hanna, Judge. Action by Robert Dearing against the Speedway Realty Company to vacate a judgment. Judgment for defendant, and plaint......