Hall v. McConey
| Decision Date | 05 December 1910 |
| Parties | STELLA HALL, Respondent, v. D. C. McCONEY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. D. E. Blair, Judge.
Judgment reversed and cause remanded. (with directions).
J. W McAntire for appellant.
(1) The motion for new trial and in arrest was filed within four days after judgment was rendered in this case, but the suggestions of the appellant to the court were filed after the four days and after the overruling of motion for new trial and in arrest and under such circumstances we are entitled to have the court review the whole record. Williams v. Circuit Court, 5 Mo. 249; Harkness v. Jarvis, 182 Mo 236; Scott & Colburn v. Joffee, 125 Mo.App. 578. (2) The judgment was rendered without proof of the allegations of the petition and the court should have set aside its finding for the causes shown and granted a new trial. R. S. 1899 secs. 799, 800; Parker v. Railroad, 148 Mo. 124; Lawson v. Mills, 130 Mo. 170; Byington v. Railroad, 147 Mo. 673. (3) While it is true that granting of a new trial rests within the sound discretion of the trial court, yet where it appears that its discretionary power was abused, that is, exercised in an arbitrary or arrogant manner, the appellate court should reverse the action of the trial court. Rodin v. Transit Co., 207 Mo. 392; Davidson v. Carp, 139 Mo.App. 154.
R. A. Mooneyham and Lee Shepherd for respondent.
(1) Even if defendant's motion to set aside the judgment was sufficient, the motion shows gross negligence on the part of the appellant who says that he thought that his employee Burns would look after the matter. Coulter v. Luke, 129 Mo.App. 707; Robin v. Publishing Co., 127 Mo. 391. (2) Courts cannot and ought not to undertake to relieve parties from the consequences of their own negligence. Coulter v. Luke, 129 Mo.App. 707. (3) The statutes allow a motion to set aside a default judgment before final judgment, but not after. R. S. 1899, sec. 770; Billingham v. Commission Co., 115 Mo.App. 157; Matthews v. Cook, 35 Mo. 286; Burns v. Burns, 61 Mo.App. 612. (4) The motion to set aside the default judgment was not timely as it was made after final judgment had been rendered. Hovey v. Sour, 50 Mo. 301; R. S. 1899, sec. 770; Smith v. Smith, 48 Mo.App. 618. (5) If there be an interlocutory judgment by default, the only issue on the final inquiry is as to the damages and nothing else can be inquired into. The defendant cannot introduce evidence controverting plaintiff's entire cause of action or tending to avoid it, or to show that no right of action exists. Phillips v. Bachelder, 47 Mo.App. 52; 1 Black on Judgments (2 Ed.), 91; Girard v. Dollar, 49 N.C. 175; Foster v. Smith, 10 Wend. (N.Y.) 377; Lambert v. Sanford, 55 Conn. 437; Lee v. Knapp, 90 N.C. 171. (6) Judgment taken by default is conclusive in respect to all such matters and facts as were well pleaded. Such issues cannot be relitigated in any subsequent action by parties or their privies. 1 Black on Judgments (2 Ed.), 87; Lenhard v. Simpson, 2nd Bidg. N. C. 176; Railroad v. Nav. Co. (C. C.), 28 F. 505; Durby v. Jacques, 1 Cliff, 425 F. Cas. 3817; Thacker v. Gammon, 12 Mass. 268.
This suit was instituted in the circuit court of Jasper county, by the plaintiff against the appellant and one William Burns. The purpose of the suit was to recover damages for the death of plaintiff's husband, who was killed in a mine owned by the appellant. The petition alleged that the appellant and one William Burns were partners, engaged in mining for lead and zinc ores in Jasper county; that plaintiff's husband was in the employ of both of said parties and was killed in defendant's mine by reason of certain alleged negligent acts of the defendants. The defendant, Burns, lived in Jasper county, and the defendant, McConey, in Jackson county. Personal service was had on both defendants. The defendant, Burns, appeared and filed an answer, and also a motion to require the plaintiff to give security for the costs of the suit. While that motion remained undisposed of, and on the fourth day of the term, the plaintiff dismissed the cause as to the defendant, Burns, and obtained a default judgment against the appellant, who had failed to answer. A jury was waived and the plaintiff introduced evidence as to the age of her husband, the condition of his health at the time he was killed, and the wages he was receiving, and after the introduction of said evidence, the court rendered a judgment against the appellant in the sum of six thousand dollars. Two days after the rendition of said judgment, the appellant appeared and filed his motion to set the same aside. The court heard testimony on the motion, and also received a number of affidavits, and overruled the motion. From the judgment overruling the motion, the defendant, McConey, appealed to this court.
The facts relating to the merits of the motion are about as follows: The defendant, Burns, was an employee of the appellant and was operating a lead and zinc mine in Jasper county in his own name. The evidence discloses that the appellant had a mining license from the owner of a tract of land to mine the premises for lead and zinc ores; that some difference existed between the owner and the appellant, and the owner attempted to forfeit the rights of the appellant to mine the premises under the license. While matters were standing in this condition, Mr. Burns registered on the lots with the consent of the owner and continued the mining operations of the appellant thereon. Burns was an employee of the appellant and received nothing for his services but a salary, and had no interest whatever in the mining property. Burns procured accident insurance in his own name to protect him against damage suits instituted by miners on account of personal injuries received. The premium for the insurance was paid from the funds belonging to the appellant.
Plaintiff's husband was killed on the 11th day of February, 1910, and this suit was instituted for the April term of the circuit court of Jasper county for that year. When the summons was served on the appellant at Kansas City, he wrote to Burns about the suit and the position the insurance company would likely take as to its liability, on account of the fact that the appellant was the sole owner of the mine. It appears indirectly from the testimony that notice of the death of plaintiff's husband was given to the accident insurance company, and that company employed Mr. Spencer, of Joplin, to look after the case in its behalf. Burns went to see Spencer about the defense of the case, and there is a difference in the testimony of Spencer and Burns as to what took place at that time. In any event, Spencer afterwards wrote to Burns that he would file an answer for him alone in the cause, which was afterwards done.
It fully appears from the evidence that the entire management and control of the mine was entrusted to Burns by the appellant. It appears from the affidavit of the appellant that he telephoned to Burns to employ a lawyer to defend the case, and that afterwards and on the first day of the April term of court, Burns telephoned him that he had employed counsel and he would attend to the case and notify him when the case was set for trial.
Appellant at the hearing of the motion, offered testimony to the effect that one Oscar Rhodes had full and exclusive charge of the underground workings in the mine, and at his own expense was to inspect the walls and roof of the mine and keep the same in a reasonably safe condition; that said Rhodes was to furnish the powder, and pay for all appliances necessary for breaking the dirt and carrying the same to the bottom of the shaft to be hoisted to the surface; that said Rhodes had the sole power to hire and discharge all men who worked in said mine, and that defendants had no control over that question in any way, and that plaintiff's husband was an employee of Rhodes and was not an employee of either of the defendants.
In support of the affidavits of the appellant and Burns as to the contract between Rhodes and Burns, the defendant offered the affidavit of Oscar Rhodes, also affidavits of several other employees in the mine. And the plaintiff, in support of her contention, offered affidavits of four of the employees that Rhodes was simply the ground boss and an employee of the defendants. The affidavits filed by defendant included affidavits of two of the same persons whose affidavits were filed by the plaintiff, but made two days later than the affidavits filed by plaintiff.
The plaintiff maintains that the motion was not timely, as it was made after final judgment had been rendered, and in support of her contention relies on the following cases. Billingham v. Commission Co., 115 Mo.App. 154, 89 S.W. 356; Matthews v. Cook, 35 Mo. 286, and Burns v. Burns, 61 Mo.App. 612.
In each of the cases above cited, there was an interlocutory judgment by default taken at one term and final judgment at the next. The motions to set aside the judgment were not filed at the term the default judgment was entered, but after final judgment, and the court held they were too late.
In Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446, it is expressly held that a motion to set aside a judgment may be filed any time during the term at which the judgment was rendered. In the late case of Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984, the authorities relied on by plaintiff and above cited, are reviewed, and it is there held that they do not apply to a case wherein the motion to set aside default judgment was filed at the same term in which the interlocutory and final judgment was rendered.
By reference to the cases of this and other states, it will be...
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