Hughes v. Christian, KCD

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 586 S.W.2d 788
• Parties: Nellie M. HUGHES, Respondent, v. Herman CHRISTIAN, and J. D. Williams, d/b/a Consolidated Cabs, and Consolidated Cabs, Inc., Appellants. 30123.
• Court: Missouri Court of Appeals

Page 788

586 S.W.2d 788

Nellie M. HUGHES, Respondent, v. Herman CHRISTIAN, and J. D. Williams, d/b/a Consolidated Cabs, and Consolidated Cabs, Inc., Appellants.

No. KCD 30123.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

Alan R. Browne, Ennis, Browne & Jensen, Kansas City, for appellants.

Gregory O. Grounds, Jones, McDaniel & Frankum, Kansas City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

The source of this appeal is an action for personal injuries sustained by the respondent (plaintiff) as a result of a rear end collision with a Consolidated Taxicab which was then being driven by appellant (defendant) Christian. The collision occurred on September 6, 1977 when the plaintiff, southbound on Broadway, had stopped the automobile she was driving at the intersection of 5th and Broadway in Kansas City, Missouri in response to a red traffic signal and was waiting for the westbound traffic on 5th to clear so she could make a right-hand turn to pursue a course to the west. While so stopped, her vehicle was struck in the rear by the Consolidated cab, also southbound on Broadway. Suit was filed December 12, 1977 against Christian and J. D. Williams, d/b/a Consolidated Cabs, and Consolidated Cabs, Inc. All three defendants were properly served with summons on December 14 and 16, 1977, but failed to answer, and a default judgment was entered on February 2, 1978 against the defendants in the sum of $10,000.00.

On February 27, 1978, a Motion to Set Aside this judgment was filed on behalf of Christian and Williams, the first sentence of which contains the parenthetical statement "(Defendant Consolidated Cabs, Inc. having taken bankruptcy)". The corporation does not further appear in this record and no appeal was taken on its behalf from the judgment or the court's order overruling the motion to vacate the default, which ruling was designated by the trial court as a final order for purposes of appeal.

The joint motion of Christian and Williams, supported by their affidavits, in summary, admits the service of summons in the case but asserts that the service papers were turned over to an office employee, John Hobbs, whose duty it was to place all such papers with, and to secure the services of, the company's attorneys to defend the suits. At the time, Hobbs had the service papers in two other suits which had been filed against the company. Hobbs did secure the services of that firm in the two cases last referred to, but "through oversight" failed to do so as to the Hughes suit, and the default judgment resulted. The motion and supporting affidavit of Christian states that the defendants have a meritorious defense to the Hughes claim due to the sudden, unexpected, unforeseeable rupture of the line carrying the brake fluid on the taxicab and the resulting loss of braking and brake failure immediately before the collision. Further, they assert that they had good reason and excuse for their default due to Hobbs' "inadvertent" oversight in failing to secure the services of counsel and their lack of knowledge of such failure until notice was received of the default judgment.

An evidentiary hearing was conducted on the motion to vacate and Christian and Williams both testified in support of these allegations. As to the mechanical failure to the brakes, the only evidence was that of Christian, who testified that although he had experienced no trouble with the brakes prior to the time in question, they did suddenly go out so that he could not avoid striking the Hughes automobile; that the point of impact was the left front of his taxicab and the right rear of the Hughes automobile; that his speed was 15-20 miles per hour at impact; and, that following the collision, brake fluid was leaking from his car at the left front wheel.

As to the oversight and neglect of Hobbs, the evidence established that Christian gave his service papers to Williams, and Williams stated that he, in turn, gave all of the service papers to Hobbs with the above-mentioned instructions to secure counsel; and all such actions were in conformity with standard company practice. It should be noted that Williams, although in communication with the company's law firm (about other litigation) after service and before judgment in the Hughes case, never made inquiry to ascertain whether the Hughes papers were in their hands for defense and neither Hobbs nor any member of the law firm were called as witnesses at the hearing. What happened to the Hughes papers was never disclosed.

It should be noted that present counsel for appellants were only retained to handle the proceedings to vacate the judgment, and this appeal, and had no connection with nor responsibility for the litigation prior to that time. Further, this record discloses that the default judgment was not entered in any perfunctory manner but upon a complete record disclosing the nature and extent of plaintiff's injuries to her neck and hand, resulting in extensive medical attention, emergency hospital care and medication, including neck support, and a long period of physical therapy, extreme headaches, pain, discomfort and loss of wages by reason of her inability to work for two months and three weeks. A medical report from her attending physician, Dr. Medlicott, M.D., of the Midwest Orthopedic Clinic, was made a part of the record, as were various medical bills. Her special damages, including loss of wages, exceeded $1600.00.

After receiving the evidence on the motion to vacate, the trial court held that although the defendants had established at least a Prima facie defense to the Hughes claim, their evidence did not establish a factual situation which showed that they exercised reasonable diligence to avoid or excuse their default under the recognized authorities. The trial court also remarked about the possible injury to the plaintiff, Hughes, which could result from the necessary delay due to the bankruptcy of the corporation involved and dispute over the application of the bond or deposit of the defendants required by Kansas City as a condition for the licensing of taxicabs.

The Court on March 3, 1978, overruled the motion to vacate the judgment. It is to be noted, as did the trial court, that this was within the 30 days after judgment was rendered.

The appellants raise a single point on appeal. They charge the trial court abused its discretion by failing to find that the evidence "that the inadvertent failure by the bookkeeper" to deliver the service papers to the attorneys for defense and "the mistaken belief by the defendants that this had been done", demonstrated reasonable diligence and excuse for default.

There is no substantial dispute (nor, indeed, can there be) as to the general principles of law that control a situation such as presented on this record.

Whether or not a default judgment should be set aside by a trial court rests generally within that court's sound discretion and its determination of that motion will not be set aside unless it appears that there has been an abuse of that discretion. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116(3) (Mo.1955).

Certain guidelines have been firmly established for the exercise of that discretion and the factors...