Kollmeyer v. Willis

Decision Date20 September 1966
Docket NumberNo. 8544,8544
Citation27 A.L.R.3d 332,408 S.W.2d 370
PartiesRichard KOLLMEYER, by his next friend, Evelyn Kollmeyer, Plaintiff-Appellant, v. John Joseph WILLIS, Defendant-Respondent.
CourtMissouri Court of Appeals

Farrington & Curtis, Thomas G. Strong, Richard K. Wilson, David G. Holden, Springfield, for plaintiff-appellant.

No appearance for defendant-respondent.

PER CURIAM.

In this factually-unique case, plaintiff Richard Kollmeyer, a minor ten years of age when struck and injured in Springfield, Missouri, on October 24, 1964, by a motor vehicle driven by defendant, appeals from a final judgment for $22,500 entered in his favor and against defendant John Joseph Willis in the Circuit Court of Greene County on December 15, 1965. Plaintiff's complaint is that a default judgment for $25,000 against defendant (hereinafter referred to as the default judgment) theretofore entered in the same circuit court on April 30, 1965, should not have been set aside on May 27, 1965, and that the default judgment should have been reinstated in response to plaintiff's requests for that relief in motions presented at different stages of the litigation after May 27. Notwithstanding the amount of the final judgment, we have appellate jurisdiction because the amount in dispute is only the difference between the default judgment of $25,000 and the final judgment of $22,500, or the sum of $2,500. Art. V, Sec. 3, Mo. Const. of 1945; Sec. 477.040. 1 Cf. Robinson v. Beatrice Foods Co., Mo.App., 260 S.W.2d 346, 348(1). Plaintiff's attorneys have filed an excellent brief, but no appearance has been made and no brief has been presented on behalf of defendant.

Suit was instituted and defendant was served during December 1964. On January 4, 1965, defendant appearing by Hosmer and Newberry, attorneys, timely filed (a) motion to dismiss on the ground that the petition did not state a cause of action on which relief could be granted and (b) motion for costs. On January 11, 1965, 'by agreement' defendant's motion to dismiss was overruled and his motion for costs was sustained with plaintiff ordered to deposit $75 in cash or to file an approved cost bond within twenty days thereafter. No answer was filed within ten days after defendant's motion to dismiss was overruled by agreement (Rule 55.27(c)) or, for that matter, at any time prior to entry of the default judgment on April 30, 1965; but, on February 16, 1965, plaintiff deposited $75 in cash with the circuit clerk.

At 4 P.M. on April 21, 1965 2 (so each paper itself recites), three instruments were signed, to wit, (1) an 'Application for Leave to Withdraw as Attorneys for Defendant' signed by Hosmer and Newberry, (2) a 'Consent to Withdrawal of Attorneys' signed by defendant and acknowledged before David G. Holden, an attorney of record for plaintiff, as notary public, and (3) a 'Withdrawal as Attorneys of Record' signed by Hosmer and Newberry.

At 9 A.M. on April 22, 1965 (so this paper recites), defendant acknowledged receipt of a copy of a typewritten 'Notice' that the case would be called for trial on Friday, April 30, 1965, in the Circuit Court of Greene County, Missouri, at which time and place he might appear and defend if he so desired, but that, if he failed to do so, 'judgment by a default will be taken against you.' The 'Notice' bore the handwritten signature of David G. Holden on a line under which the name of 'Thomas Strong,' another attorney of record for plaintiff, had been typed.

On April 30, 1965, the three above-described instruments dated at 4 P.M. on April 21, 1965, were filed in the circuit court; a record entry was made that Hosmer and Newberry were permitted to withdraw as attorneys for defendant; and the above-described 'Notice' dated at 9 A.M. on April 22, 1965, and bearing defendant's acknowledgment of service thereof, was filed. The record shows that thereafter on April 30, 1965, plaintiff appeared in person by next friend and by attorney, but defendant 'fails to appear and makes default,' whereupon the court heard plaintiff's evidence, found the issues in his favor, and entered judgment against defendant in the sum of $25,000.

On May 14, 1965, 'defendant filed' his 'Motion to Set Aside Judgment and for New Trial' (hereinafter referred to as the motion to set aside), opening with the recitation 'Comes now defendant, John Joseph Willis, by and through Harold J. Fisher . . .,' identified in the motion as attorney for Western Fire Insurance Company (hereinafter called Western) 'which issued its policy of automobile liability insurance to defendant insuring the automobile which defendant was operating at the time of the incident' described in plaintiff's petition. The first part of the motion to set aside supported the assertion that 'defendant has a meritorious defense' to plaintiff's cause of action, in that (so it was averred) as defendant was southbound on Dysart Street and plaintiff was 'running north . . . upon the traveled portion of the street, defendant steered to his left to avoid striking plaintiff but . . . plaintiff abruptly changed his path of travel and ran to his right directly into the path of defendant's motor vehicle . . . after plaintiff and defendant's vehicle were in such close proximity (as) to make it impossible for defendant to thereafter avoid striking plaintiff.'

The second part of the motion to set aside was devoted to the proposition that 'defendant's failure to appear and defend . . . was excusable under the circumstances of the instant case.' A brief summarization of the averments in the motion follows. 'There was and is a dispute between Western . . . and defendant . . . as to whether the policy (issued by Western to defendant) was void ab initio so that there would be no coverage under the said policy afforded to defendant . . . for the accident' in suit. To resolve that dispute, Western instituted a declaratory judgment action in the Circuit Court of Greene County, Missouri, on December 7, 1964. On April 12, 1965, Western made written request of the court that the declaratory judgment action be set for trial; and, on April 19, 1965, plaintiff's attorney Strong made like written request.

Prior to 'answer time' in the damage suit, Western 'advised defendant . . . that it was denying any coverage under its policy,' and defendant then employed attorney Newberry. Upon learning of such employment, Fisher 'conferred on numerous occasions' with Newberry and 'was assured that defense would be offered to (plaintiff's) petition.' In turn, Fisher assured Newberry that, 'if it was determined in the declaratory judgment action that (Western's) policy . . . was in effect,' Newberry would be paid for services rendered in such defense. The motion to set aside then alleged that no notice either of the withdrawal of Hosmer and Newberry as defendant's attorneys or of the setting of the damage suit for trial on April 30, 1965, was given to Fisher or the Western.

Finally, the motion to set aside averred that, until the declaratory judgment action might be determined 'favorably to Western . . . (it) has a direct interest in the defense of the (damage suit) . . .; that its failure to appear in defense of plaintiff's petition when judgment was rendered on April 30, 1965, was excusable in that it had been assured that a defense would be made by defendant's attorney, Mr. John Newberry; it had no notice that such defense was not being made, that the attorney, in fact, had withdrawn, and that the case had been set for hearing on April 30, 1965.'

On May 24, 1965, the affidavit of attorney Newberry was filed in which he stated (1) that Western had advised defendant and his attorneys, Hosmer and Newberry, that Western 'did not afford coverage with regard to the (damage suit) and . . . would not defend said action . . .,' (2) that Western had 'failed and refused to defend' the damage suit until after judgment had been rendered for plaintiff on April 30, 1965, and (3) that 'affiant (Newberry) never contracted with Western . . . to defend (the damage suit) in behalf of said company and never assured said company, or its attorneys, that said action would be defended,' although, in conversation with Western's attorneys, Newberry or his partner, John Hosmer, 'did mention that they had been retained by (defendant) to represent him and that they would protect the interests of their said client to the best of their ability, and that said attorneys have in the past, and in the (declaratory judgment action) even now are so representing said client.'

On May 24, 1965, plaintiff's attorney Strong filed an affidavit first stating that defendant had delivered summons and petition in the damage suit to Western; that Western had refused to defend the suit; that thereafter defendant had retained Hosmer and Newberry to represent him both in the damage suit and in the declaratory judgment action; that defendant, having failed to file an answer in the damage suit, had been in default therein from and after January 21, 1965; and that Fisher's firm (Allen, Woolsey and Fisher), as attorneys for Western, 'had knowledge of such fact.' (The source of Strong's information as to the 'knowledge' of Fisher's firm concerning defendant's default was not disclosed.) This affidavit then quoted in part the 'Notice to Lawyers' in the printed docket delivered to members of the Greene County Bar, including Fisher's firm, on or about March 30, 1965, that the cases (of which the damage suit was one) then pending in Division II of the Circuit Court of Greene County would be called at 9 A.M. on April 6, 1965, and that the date and time of the pre-trial conference in each such case would be announced at the docket call. Affiant Strong then averred in substance that members of Fisher's firm were present in the courtroom during the docket call on April 6, 1965, when a pre-trial conference in the instant...

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    ...of St. Francois County v. Patterson, 696 S.W.2d 800 (Mo.App.1985); Murray v. Sanders, 667 S.W.2d 426 (Mo.App.1984); Kollmeyer v. Willis, 408 S.W.2d 370 (Mo.App.1966); Karst v. Chicago Fraternal Life Ass'n, 22 S.W.2d 178 (Mo.App.1930); Savings Finance Corp. v. Blair, 280 S.W.2d 675 (Mo.App.1......
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  • Section 3.26 Necessity for Good Faith
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