Grigsby v. Liles

• Decision Date: 14 March 1961
• Docket Number: 8 Div. 732
• Citation: 147 So.2d 836,41 Ala.App. 627
• Parties: Lloyd GRIGSBY, Jr. v. Charles W. LILES.
• Court: Alabama Court of Appeals

Page 836

147 So.2d 836

41 Ala.App. 627

Lloyd GRIGSBY, Jr. v. Charles W. LILES.

8 Div. 732.

Court of Appeals of Alabama.

March 14, 1961.

Rehearing Denied May 16, 1961.

Mandamus Denied on Mandate Dec. 11, 1962.

E. B. Haltom, Jr., and Donald H. Patterson, Florence, for appellant.

Potts & Young, Florence, for appellee.

HARWOOD, Presiding Judge.

On 27 November 1957, Charles W. Liles, who was then a minor, was riding as a passenger in an automobile driven by Lloyd Grigsby, Jr. Grigsby collided with a concrete guard rail, wrecking his automobile. As a result Liles, suing by his father and next friend, filed suit against Grigsby on 26 November 1958, claiming damages for personal injuries received in the accident.

The complaint was in two counts, one charging simple negligence and the other count charging willful or wanton conduct. Liles being a guest in Grisgby's automobile would be within the operation of our 'guest statute,' and would therefore of necessity have to base his recovery on the willful and wanton count in the complaint.

On 9 March 1960, the case was called for trial on the jury docket of the Circuit Court of Lauderdale County, having been continued from 7 March 1960. On 9 March 1960, by consent of the plaintiff and the defendant and their respective attorneys of record, the court entered a consent judgment in the sum of $1,000 in favor of the plaintiff Liles and against the defendant Grigsby.

It appears that when the case was called for trial an eyewitness, Jesse Arlin 'Red' Canerday, who had been subpoenaed as a witness by both the plaintiff and defendant, was not in court, although he had answered when the case was originally called on 7 March. The attorneys for the defendant asked the court for an attachment for the witness Canerday and the court advised the attorneys for the plaintiff that the court would use its processes to get the absent witness and that he might be there by the time he was needed.

Counsel for the plaintiff stated to the court that no other witness, other than the plaintiff and defendant, knew the facts as the witness Canerday. Repective counsel in the presence of the court then entered upon a discussion of a possible settlement of the case. In this connection, the court in its order setting aside and vacating the consent judgment made the following statement:

'On the morning of and during the 30 or 40 minutes the settlement was being discussed and effected, some of the plaintiff's witnesses,--particularly the eye witness, Canerday--were not present in the courtroom. It appears that the father of the minor defendant had stated in a country store that the case either would not be reached for trial or would probably not be reached for trial that day, and the word got to the witness Canerday and though he should have been in court; nevertheless, he was not in court. And his absence was through no fault of the plaintiff. The court being orally approached at the Bench on the matter of a possible continuance stated to plaintiff's attorney that the Court thought the case ought to be either settled or tried that day, and at least, made strong implications that a formal application for continuance would be refused. The settlement followed. It would appear that the minor plaintiff and his father feel that they have not had their day in court. And the court is apprehensive that the settlement might not have been entered into freely and voluntarily and without pressure.'

On 11 March 1960, the defendant Grigsby filed a written motion praying that the court direct the clerk to enter and write up the judgment of the court pronounced by consent in open court on 9 March 1960, in favor of the plaintiff in the amount of $1,000, with cost taxed against the defendant. Subsequently thereto, the plaintiff Liles filed a motion praying that the consent judgment be set aside. On March 25, 1960, the motion of the defendant to have the consent judgment entered, and the plaintiff's motion to have said judgment set aside were heard together, and the defendant's motion to have the consent judgment written and entered was granted, and the plaintiff's motion that such judgment be vacated was set for further hearing to 6 April 1960, and on that date this motion was further heard and taken under advisement of the court.

On 18 April 1960, the plaintiff's motion to set aside the consent judgment was granted.

The motion to set aside the consent judgment contains some twelve grounds. We think a fair summary of these grounds is to the effect that: (1) the court abused its discretion in requiring the plaintiff to proceed to trial in the absence of any witnesses other than the plaintiff, (2) that the consent judgment is based on an agreement which resulted from surprise which ordinary prudence could not have guarded against in that defendant's attorneys had furnished plaintiff's attorneys with written statements from witnesses which statements were to the effect that the defendant was not guilty of willful and wanton conduct, whereas the witnesses would have testified to facts which would have tended to establish willful and wanton conduct, (3) that defendant's attorneys, in advising witnesses Brewer and Williams that they could be on call precluded plaintiff of an opportunity to confer with said witnesses, and, (4) the $1,000 judgment is so inadequate as to shock the conscience.

At the hearing on the motion to set aside the consent judgment, it was stipulated that the plaintiff and the defendant at the time of the trial were over twenty-one years of age.

The evidence submitted at such hearing tends to show that upon being employed to represent the insurer of the defendant, and the defendant, the attorneys for the defendant proceeded to obtain written statements from several witnesses, which statements, as before state, tended to negative any willful or wanton conduct on the part of the defendant. These statements were sworn to before a notary public, and were obtained in good faith. We wish to make it clear that there is no charge of misconduct made against the attorneys for the defendant, and in fact they were only performing their duties consonant with their employment. It is the solemn sworn duty of an attorney to ascertain, so far as he can, what the evidence is, and his duty is not at an end when he has conferred with his client. He must see and talk with the witnesses. Golson v. State, 34 Ala.App. 396, 40 So.2d 725.

As these statements were obtained, copies were immediately furnished to the attorneys for the plaintiff, and this was some three to six months before the date of trial.

It also appears that the witness Canerday also gave to the defense attorneys two written statements, contradictory to the previous written statement given to the plaintiff's attorneys. A copy of these statements was promptly furnished by plaintiff's attorneys to the defense attorneys.

The medical reports of Dr. J. Ralph Rice, an ophthalmologist of Nashville, Tennessee, and of Dr. Shaler S. Roberts, an ophthalmologist of Florence, Alabama, concerning their examination of the plaintiff, made some time after the accident, were received in evidence. Dr. Rice was of the opinion that the plaintiff had a 10% loss of visual efficiency in his right eye, or a binocular deficiency of 3%.

Dr. Roberts assessed the plaintiff's visual deficiency at not over 5% of the time he was awake.

When the case was first called for trial on 7 March 1960, the witness Brewer, who had been subpoenaed by both the plaintiff and the defendant, was in court. Brewer worked at the Stylon plant. According to the record, the following is shown in connection with this witness:

'Mr. Patterson: Yes, sir, it was on Monday. Frank approached me and asked if Tommy Brewer had been here that morning. I told him he had been, and I told Frank the boy had been missing work and that I told him to go back to Stylon, and Frank didn't seem alarmed, but, as I remember, he shrugged it off and said, 'Well, I wanted to see him.' That was on Monday.

'Mr. Potts: I would like for the record to show that I was not apprised that he was working that day when the settlement was had, and I actually didn't remember the place of employment that he mentioned that he was working on Monday, but on the day that the Court instructed us to go to trial I was not informed as to the whereabouts, but I was on Monday and that Mr. Patterson told him not to come in; but is is my understanding that the witness was here in court but we didn't know it. I admit what Don said, but that information wasn't given on Wednesday.'

It should be noted that in the written sworn statement given by Brewer to defendant's attorney on 5 August 1959, he set out that he was employed by the Stylon Corporation, Plant No. 2, in the shipping department. A copy of this statement was furnished plaintiff's attorneys several months before the date of trial.

The witness Williams was a high school student, and arrangements had been made by defense counsel to have him on call. He had not been subpoenaed by the plaintiff, counsel for plaintiff stating they expected to have a subpoena issued for him at the time of trial.

Counsel for the plaintiff testified that during the discussion, on the day of the trial, relative to a possible settlement of the case, they conferred with the plaintiff and told him that in view of the absence of witnesses they were of the opinion that he might probably lose his case if they went to trial, and recommended that the settlement offer of $1,000 be accepted. The plaintiff was reluctant to accept such offer but upon insistence of his counsel he finally agreed to accept such offer. Counsel then returned to the courtroom, and announced the agreement for the consent judgment.

It further appears that very shortly after the consent judgment the plaintiff and his attorneys then interviewed several of the witnesses, whose statements had been furnished by the defense to the plaintiff's...