Distefano v. Kansas City Southern Ry. Co., KCD
| Decision Date | 05 November 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 501 S.W.2d 551 |
| Parties | George DISTEFANO, Respondent, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY and Morgan P. Gunderson, Appellants. 26234. |
| Court | Missouri Court of Appeals |
Sam D. Parker, Robert D. Youle, Daniel M. Dibble, Kansas City, for appellants; Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel.
Bernard Eveloff, Kansas City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
Appeal is taken from the denial of a motion to vacate a default judgment for $10,000 taken against defendants Kansas City Southern Railway Company and Morgan P. Gunderson. Appellants contend that the refusal of the trial court to vacate the default judgment was error because their failure to appear at the trial was due to inadvertence and mistake rather than negligence. Further, they contend that they have a meritorious defense.
This suit arose out of a truck-train collision at an intersection in Kansas City. Respondent sued both the engineer of the train and the railroad on the principle of respondent superior and sought $17,000 damages from them. Affidavits submitted by appellants in support of the motion to vacate the default judgment revealed that the petition and summons served upon the railroad and Morgan Gunderson were forwarded ot the railroad's legal department and specifically, to the Assistant General Counsel of the railroad, Richard P. Bruening. It was the practice of the railroad to represent its employees in suits of this nature; thus, Gunderson placed the defense of his case in the hands of his employer and gave it no further thought.
Bruening reviewed the case and determined that the railroad would defend the suit. He transmitted the suit papers to E. Richard Gibbons, the Chief Clerk of Bruening's department, for preparation of a case file and forwarding to the railroad's local trial counsel. Gibbons placed the papers in a file drawer and forgot about them. A default judgment was entered and notice was given to appellants of that fact.
A party who seeks to have a default judgment set aside must show good cause for his failure to answer timely and that he has a meritorious defense to the claim asserted in plaintiff's petition. Clinton v. Clinton, 444 S.W.2d 677, 681(2) (Mo.App.1961).
Appellants argue that good cause for setting aside a default judgment is shown by the justifiable reliance of a defendant upon a third party to engage a lawyer to...
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...to be considered on its own facts, cases exist where papers have been filed and forgotten or misrouted. In Distefano v. Kansas City Southern Railway Co., 501 S.W.2d 551 (Mo.App.1973), this court considered whether or not good cause existed for failure to file an answer when a company clerk ......
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