Highfill v. Williamson
| Decision Date | 10 October 1973 |
| Docket Number | No. 7319SC184,7319SC184 |
| Citation | 199 S.E.2d 469,19 N.C.App. 523 |
| Parties | Charles Franklin HIGHFILL v. William Fred WILLIAMSON. |
| Court | North Carolina Court of Appeals |
John V. Hunter, III, Raleigh, for plaintiff appellant.
Henson, Donahue & Elrod by Daniel W. Donahue, Greensboro, for defendant appellee.
This action was instituted 28 August 1970, and the summons and complaint were personally served upon the defendant on 31 August 1970.
The complaint alleges that the defendant is a citizen and resident of Person County, North Carolina, and is of legal age and under no legal disability; that on 24 January 1969, the plaintiff was in his Chevrolet automobile stopped for a red traffic control signal in the City of Asheboro; that the defendant, driving a Pontiac automobile, ran into the rear of the plaintiff's vehicle; that at the time the defendant was under the influence of intoxicating liquor; that as a result of the collision, plaintiff received permanent injuries to the lumbo-sacral area of his back; that the defendant had been damaged in the amount of $100,000 for personal injuries and in the amount of $200 for property damage and also sought $25,000 in punitive damages.
The defendant filed no answer, demurrer or other pleading and procured no extension of time to do so. On 6 April 1971, Judge Gambill entered a judgment by default and directed that an inquiry as to the amount of damages be determined at a civil term of the superior court before a jury.
At the 21 September 1971 Civil Session of the Superior Court of Randolph County, issues were submitted to a jury and the jury awarded compensatory damages for personal injuries in the amount of $100,000, property damage in the amount of $200 and nothing for punitive damages. Thereupon, Judge Johnston, under date of 23 September 1971, entered a judgment in accordance with they jury verdict.
On 29 March 1972, the defendant filed a motion to set aside the judgment.
The motion sets forth the following reasons for setting the judgment aside:
1. Prior to the institution of the action, plaintiff's attorney had negotiated with James R. Price, an adjuster with the Pennsylvania National Mutual Casualty Insurance Company, regarding a possible settlement.
2. The clerk of court did not enter a default. In the two judgments which were entered, there was not a finding that the defendant was neither an infant nor an incompetent person; nor was there a finding that the court had jurisdiction over the person of the defendant and over the subject matter of the action.
3. At the time of the inquiry as to damages, the plaintiff did not give notice to the defendant.
4. The two judgments were entered by two separate judges of the superior court and neither judge was advised by the attorney for the plaintiff about negotiations for settlement prior to the institution of the action.
5. If the representative of the defendant, namely, the insurance adjuster, had known about the institution of the action, counsel would have been retained to represent the defendant.
6. The amount of the recovery is excessive and shocking to the conscience since the total medical bills amounted to less than $300, and the total cost of repairing the plaintiff's automobile amounted to $99.20.
Attached to the motion was an affidavit from James R. Price, an adjuster for the Pennsylvania National Mutual Casualty Insurance Company. This affidavit set forth that the defendant had a liability insurance policy with that insurance company. The affidavit outlined various negotiations that had taken place between John Randolph Ingram, the attorney who was representing the plaintiff, and Price. The last communication between Mr. Ingram and Mr. Price occurred on or about 18 May 1970. At the time of the hearing, Mr. Price testified as a witness; and it appeared that on 24 April 1970 Mr. Ingram made a demand for settlement of $15,000. Thereafter, the last communication was on or about 18 May 1970, and the record reveals the following:
'Q. And, you told me at that time, when I rejected your offer personally, myself, you said, did you not,
A. That's what I said.
Q. You told me that?
A. That's what I said.
Q. I told you, 'As far as I was concerned, we would leave it.'
A. I said, 'Let me know.'
Q. I told you, 'As far as I was concerned, we would leave it.' Isn't that right?
A. I don't remember.'
At the conclusion of the hearing, Judge McConnell entered the following order:
'ORDER OF MCCONNELL, J.
THIS CAUSE COMING ON TO BE HEARD before the undersigned Judge Presiding at the July 31, 1972 civil session of Superior Court of Randolph County upon the motion of the defendant William Fred Williamson that the Court enter an order setting aside the two judgments entered in this action; and after considering the evidence offered by the parties, and considering the argument of counsel, the Court makes the following findings of fact:
I. The plaintiff, Charles Franklin Highfill, and the defendant, William Fred Williamson were involved in an automobile collision which occurred on January 24, 1969, in the City of Asheboro, Randolph County, North Carolina. Thereafter, the plaintiff retained John Randolph Ingram to represent him in this action and on or about February 5, 1969, John Randolph Ingram notified the Pennsylvania National Mutual Casualty Insurance Company that he represented the plaintiff. James R. Price, an agent and employee of the Pennsylvania National Mutual Casualty Insurance Company thereafter contacted Mr. Ingram and Mr. Price and Mr. Ingram consulted on a number of occasions thereafter regarding a settlement of the claim of Charles Franklin Highfill.
II. After being first contacted by the plaintiff's attorney on or about February 5, 1969, James R. Price, an adjuster for the Pennsylvania National Mutual Casualty Insurance Company, which company afforded liability coverage to the defendant, William Fred Williamson on the occasion complained of, contacted John Randolph Ingram regarding a settlement of this matter; that on or about March 3, 1969, he received a letter from John Randolph Ingram enclosing medical reports and bills and requesting that an appointment be made to discuss a settlement of the case; that thereafter he conferred with the plaintiff's attorney on March 13, 1969, regarding a possible settlement of the matter; that he was advised on that occasion that the matter could not be settled until the plaintiff, Charles Franklin Highfill, was released by Dr. Frank Edmondson; that on June 20, 1969, he received a letter from the plaintiff's attorney, John Randolph Ingram, requesting that an appointment be made so that a settlement of the case could be discussed; that on July 24, 1969, he again discussed this matter with the plaintiff's attorney and was advised that the plaintiff was again seeing Dr. Edmondson and that the matter could not be settled at that time; that the plaintiff's attorney at that time promised that he would furnish to James R. Price up-to-date medical reports and bills and statements of lost wages; that on August 28, 1969, James R. Price again contacted the plaintiff's attorney regarding a settlement of this case and was advised by the plaintiff's attorney that he would furnish to James R. Price up-to-date medical reports and bills and statements of lost wages; that on or about December 29, 1969, he received a letter from the plaintiff's attorney requesting an appointment to discuss settlement of this case; that on January 8, 1970, James R. Price again contacted plaintiff's attorney and plaintiff's attorney at that time still had no up-to-date medical report or statement of lost wages; that James R. Price advised the plaintiff's attorney that he was willing to settle the case as soon as up-to-date medical reports and bills and statements of lost wages could be submitted; the plaintiff's attorney advised that he would obtain such up-to-date reports; that on April 2, 1970, James R. Price again discussed this matter with the plaintiff's attorney regarding settlement of this matter at which time he was advised by the plaintiff's attorney that he had no recent medical information or statement of lost wages and was advised at that time by the plaintiff's attorney that his settlement demand would be in the area of $10,000.00; that on or about April 3, 1970, he received a letter from the plaintiff's attorney enclosing a medical report from Dr. R. E. Williford; that on April 23, 1970, James R. Price received a letter from the plaintiff's attorney regarding a settlement of this matter; that on April 24, 1970, James R. Price telephoned the plaintiff's attorney and discussed settlement of this matter; that on May 12, 1970, the plaintiff's attorney forwarded to James R. Price a letter regarding settlement of this matter at which time he was advised that the plaintiff's settlement demand was $15,000.00; that on May 18, 1970, James R. Price contacted the plaintiff's attorney and extended an offer of settlement in the amount of $1,000.00; that that settlement offer was never formally rejected by the plaintiff or his attorney; that the plaintiff's attorney has furnished to James R. Price a list of medical expenses totaling $285.50; that James R. Price has been advised that the plaintiff missed no time from his employment with the Asheboro Police Department; that James R. Price has been furnished with medical information revealing that the plaintiff's injury, if any, sustained in the collision was relatively minor; that the plaintiff obtained an estimate of the cost to repair his automobile resulting from this collision, and that that estimate totaled $99.20.
III. This action was instituted on August 28, 1970. The attorney for the plaintiff, John Randolph Ingram, did not forward copies of the summons and complaint in this action to any...
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Yale v. National Indem. Co.
...not to invalidate even upon direct attack a subsequent default judgment rendered by a superior court judge. Highfill v. Williamson, 19 N.C.App. 523, 532, 199 S.E.2d 469, 474 (1973).16 See note 11 Supra.17 In addition to the cited expressions in North Carolina cases, this is the view general......
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...S.E.2d 432, 434 (2008) (citing Hasty v. Carpenter, 51 N.C. App. 333, 336-37, 276 S.E.2d 513, 516-17 (1981); Highfill v. Williamson, 19 N.C. App. 523, 532, 199 S.E.2d 469, 474 (1973)). Therefore, the trial court did not abuse its discretion in this regard. Defendants next argue that the tria......
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...by the judge upon the facts found are reviewable on appeal. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507 (1954); Highfill v. Williamson, 19 N.C.App. 523, 199 S.E.2d 469 (1973). The trial court's findings of fact establish that the male defendant was 'deficient in his usual mental processes.' ......
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