Henson v. Diehl Machines, Inc.

• Decision Date: 07 May 1984
• Citation: 674 S.W.2d 307
• Parties: Edward Alan HENSON and wife Sally Bernice Henson, Plaintiffs-Appellants, v. DIEHL MACHINES, INCORPORATED, Defendant-Appellee. 674 S.W.2d 307
• Court: Tennessee Court of Appeals

Page 307

674 S.W.2d 307

Edward Alan HENSON and wife Sally Bernice HensonPlaintiffs-Appellants, v.DIEHL MACHINES, INCORPORATED, Defendant-Appellee.

674 S.W.2d 307

Court of Appeals of Tennessee Western Section, at Jackson.

May 7, 1984.

Application for Permission to Appeal

Denied July 23, 1984.

David Hardee, Jackson, for plaintiffs-appellants.

Stephen K. Heard, Nashville, for defendant-appellee.

CRAWFORD, Judge.

Plaintiffs appeal from the order of the trial court granting summary judgment for defendant.Plaintiffs do not take issue with the propriety of the summary judgment, but contend that their previously granted default judgment was erroneously set aside by the trial court, thus enabling defendants to defend and ultimately obtain the summary judgment.The only issue presented on this appeal is whether the trial court abused its discretion in setting aside plaintiffs' previously granted default judgment.

A review of the pleadings, affidavits and memoranda in the record reveals the following: Plaintiffs, Edward Alan Henson and wife, Sally Bernice Henson, filed suit against defendant, Diehl Machines, Incorporated, in Circuit Court of Madison County on September 1, 1982.The complaint alleged that Mr. Henson sustained personal injuries caused by a machine manufactured by the defendant and predicated the action on the theories of negligence, implied warranty, strict liability and negligent design.An identical lawsuit was filed by plaintiffs against the same defendant in defendant's home state of Indiana on September 9, 1982.Defendant was duly served in both cases and forwarded the suit papers to its insurance carrier.The insurance carrier's representative failed to notice that there were two identical suits filed in different states and only recognized the suit filed in Indiana.The suit papers received by the insurance company were forwarded to counsel in Indiana to handle the defense, and an appearance was duly made in the Indiana court.No appearance was made in the instant case and initially no pleadings were filed on behalf of defendant.Without notice to defendant on November 5, 1982, in open court, plaintiffs were granted a default judgment and presented proof concerning the alleged injuries and damages.On December 20, 1982, judgment totaling $79,104.81 was granted to plaintiffs against defendant.

Indiana counsel for defendant noticed that he had actually received suit papers for the Tennessee lawsuit in addition to the suit papers for the Indiana lawsuit.He called plaintiffs' counsel and was advised that plaintiffs intended to proceed with both lawsuits.Thereupon, defendant obtained Tennessee counsel and on December 28, 1982, a notice of appearance and a motion for additional time within which to plead were filed on behalf of defendant by the retained counsel.Subsequently, on January 11, 1983, defendant, through counsel, filed a motion to set aside the default judgment entered on December 20, 1982, and attached to the motion as exhibits the affidavits of a John J. Sweeney, Thomas J. Trauring, and Robert L. Estes.

The affidavit of Sweeney states that he is the casualty claim manager of defendant's insurance carrier, and he has responsibility for overseeing litigation.He received the suit papers in the instant case on or about September 13, 1982, and upon opening the envelope he noticed the top paper was a form summons from the State of Tennessee, Circuit Court of Madison County, with the Tennessee and Madison County X'ed out, and in the place thereof was typed the State of Indiana and County of Wabash.Attached to this summons was the complaint styled in the Circuit Court for Wabash County, Indiana.He did not notice the second summons reflecting the lawsuit in Madison County, Tennessee.He further states he suffers from glaucoma and just did not notice that there were two separate lawsuits, because he thought the extra suit papers were copies of the same lawsuit.He thereupon forwarded the suit papers to attorney Trauring in Indiana to handle the defense of the lawsuit, and he was not aware of the Tennessee lawsuit, until he received on December 23, 1982, an unsigned copy of the order granting default judgment.Immediately upon learning of the Tennessee lawsuit, counsel was hired to defend the case.The affidavit of Thomas J. Trauring states that on November 15, 1982, his law firm was asked to appear on behalf of defendant in an action filed in Wabash Circuit Court, and an appearance was filed on that same day in that court.A copy of the appearance was served on plaintiffs' counsel by U.S. Mail on that same date, and on November 18, 1982, he talked by telephone with a female person identifying herself as Susan Taylor Shoaf, one of the attorneys for plaintiffs.He inquired as to whether plaintiffs intended to pursue both the Indiana and Tennessee cases and was informed by Ms. Shoaf that she would have to let them know after she talked to Mr. Hardee.On December 13, 1982, he again talked to the same female person, and she indicated that no decision had been made concerning his previous inquiry, but they were likely to pursue both actions.Thereupon, he proceeded to defend the action in Indiana.

The affidavit of Robert L. Estes states that he is a practicing attorney in Nashville, Tennessee, that his firm was retained to represent defendant on December 23, 1982, that he immediately attempted to contact plaintiffs' attorney and filed notice of appearance, motion for extension of time and supporting affidavits with the clerk of the Circuit Court of Madison County.On December 27, he learned that a default judgment had been taken and that the order of default judgment was entered December 20, 1982.On December 27, 1982, he spoke with plaintiffs' attorney, David Hardee, and asked him to voluntarily set aside the default judgment,...