McKnight v. Pettigrew

• Decision Date: 22 May 1956
• Docket Number: No. CC825,CC825
• Citation: 91 S.E.2d 324,141 W.Va. 506
• Court: West Virginia Supreme Court
• Parties: Pawnee McKNIGHT v. Thomas E. PETTIGREW.

Page 324

91 S.E.2d 324

141 W.Va. 506

Pawnee McKNIGHT v. Thomas E. PETTIGREW.

No. CC825.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1956.

Decided Feb. 28, 1956.

Rehearing Denied May 22, 1956.

Syllabus by the Court.

1. A demurrer to a special replication to a special plea should be sustained where the special replication admits the material allegations of the special plea, but fails to allege facts sufficient to avoid the effects of the allegations of the special plea.

2. 'A judgment, valid on its face and rendered by a court of general jurisdiction having jurisdiction of both parties and subject matter, is not open to collateral attack.' Point 4, Syllabus, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350, 754.

3. Where a duly licensed attorney at law, regularly employed to represent a party to an action at law pending before a court having jurisdiction of the subject matter, appears at the bar of the court and consents to the entry of an order, and the order becomes final, the authority of the attorney to represent the litigant by whom he was employed, as to the matters adjudicated by the order, will be presumed until the contrary is clearly established in a proper proceeding.

Palmer & Elkins, J. Campbell Palmer, III., Charleston, for plaintiff.

Herbert W. Bryan, St. Albans, for defendant.

GIVEN, Judge.

The parties to this proceeding, Pawnee McKnight and Thomas E. Pettigrew, on July 23, 1954, suffered injuries in a collision between two automobiles, which collision occurred in Kanawha County. McKnight was owner and operator of one of the automobiles involved, and Pettigrew was owner and operator of the other automobile involved. Pettigrew instituted an action in the Circuit Court of Kanawha County against Pawnee McKnight, alleging that the accident was caused by the negligence of McKnight. Later, McKnight instituted an action in the same court against Pettigrew, alleging that the accident was the result of negligence of Pettigrew. The two actions were, by the circuit court, consolidated 'for trial'. To the declaration filed by McKnight, Pettigrew filed the general issue plea, and also his special plea. Whereupon, McKnight filed a replication to the special plea, denominated by him special replication, to which replication Pettigrew demurred. The circuit court overruled the demurrer and, on its own motion, certified its rulings to this Court.

The special plea of Pettigrew alleges, in effect, that the defendant McKnight ought not to have the right to further maintain his action, for the reasons that the two actions are based upon, and arose out of, the same accident or occurrence; that at the time of the accident there existed a valid insurance agreement or policy whereby McKnight was insured by the Aetna Casualty and Surety Company against loss by reason of bodily injury or property damage occasioned by the use of the automobile of McKnight; that by the terms of the policy, McKnight 'constituted, appointed and made said Aetna Casualty & Surety Company the agent of said Pawnee McKnight, and as such agent authorized the said Aetna Casualty & Surety Company to negotiate and make such settlement of any claim or suit against said Pawnee McKnight as it deemed expedient for and on account of any damages sought against the said Pawnee McKnight for personal injury liability and property damage liability by said Thomas E. Pettigrew in the aforesaid action of trespass on the case, instituted by said Thomas E. Pettigrew against said Pawnee McKnight in this Court; and on the 17th day of February, 1955, pursuant to its right and authority as insurer and agent of said Pawnee McKnight, as aforesaid, and for the use and benefit of, and with the knowledge and approval of said Pawnee McKnight, said Aetna Casualty & Surety Company, as agent and insurer of said Pawnee McKnight, as aforesaid, negotiated, settled and compromised the said action of Thomas E. Pettigrew against said Pawnee McKnight, for and on behalf of said Pawnee McKnight, by paying unto the said Thomas E. Pettigrew the sum of Five Thousand Dollars ($5,000) in settlement of the property damage and personal injury suffered by said Thomas E. Pettigrew for and on account of the aforesaid automobile collision, accident and occurrence upon which both of the aforesaid actions of trespass on the case are based; and by order entered on the 17th day of February, 1955, in the aforesaid action of trespass on the case instituted in this Court by said Thomas E. Pettigrew against said Pawnee McKnight, tendered to the Court by counsel for said Pawnee McKnight and approved by counsel for said Thomas E. Pettigrew, said action has been dismissed as settled agreed with prejudice to the plaintiff therein, said Thomas E. Pettigrew'.

The special replication of the plaintiff McKnight to the special plea, after setting out the facts upon which the two causes of action were based, the consolidation of the actions 'for trial', the pertinent provisions of the insurance policy issued to McKnight, the employment of J. Campbell Palmer, III, a practicing attorney at law, by the Aetna Casualty and Surety Company to defend the action instituted by Pettigrew against McKnight, the employment of the same attorney by McKnight to prosecute an action on behalf of McKnight against Pettigrew arising out of the same accident, the existence of a valid agreement or insurance policy whereby the United States Fidelity and Guaranty Company insured Pettigrew against loss occasioned to any person by the use of the automobile owned and being driven by Pettigrew at the time of the accident, and the setting for trial of the consolidated actions on February 17, 1955, alleged that: 'Thereafter, at the request of said J. Campbell Palmer, III, the adjustors and representatives of each of the two aforesaid insurance companies, together with Herbert W. Bryan, and Thomas E. Pettigrew, met with the said J. Campbell Palmer, III, at his office to discuss the two said pending actions. At said conference it was agreed that each insurance carrier had the right and was permitted to deal separately with the plaintiff in the action against that insurance carrier, and that either or both could make any such settlement with the injured party who was suing it, as that insurance company deemed fit and proper, and that if each insurance company could reach an amount agreeable to it and the suing party, either or both could agree to a settlement of those terms.

'There was no agreement of any kind whatsoever that if either insurance carrier did make a settlement with the injured party, that that would in any way affect the pending action, nor was there any agreement made that it would not affect the remaining pending action if one company made a settlement and the other did not.

'Thereafter, pursuant to said understanding and agreement, the Aetna Casualty and Surety Company, acting solely in its own behalf and without the knowledge, consent or approval of Pawnee McKnight, negotiated a settlement agreement with Thomas E. Pettigrew which is attached hereto as Exhibit A and made a part hereof.

'The settlement was made under and pursuant to the terms of the aforesaid liability insurance policy, pursuant to the right of the Aetna Casualty and Surety Company so to do, no notification was given to Pawnee McKnight that any such settlement was in progress or had been made, he was not advised of the terms thereof, paid no part of the settlement or the cost thereof, has not ratified or approved said settlement, and all of the expenses thereof, including the attorney fee and the expenses of J. Campbell Palmer, III, are to be and were paid by the said Aetna Casualty and Surety Company.

'Thereafter, on the same 17th day of February, 1955, on which date the above said settlement was entered into, an order was prepared and signed by Herbert W. Bryan, counsel for Thomas E. Pettigrew, and by J. Campbell Palmer, III, as attorney for the said insurance company, and acting solely for it, presented to this Court and by it duly and properly entered, a copy of which said order is attached hereto as Exhibit B, and made a part hereof.

'Thereafter, the said United States Fidelity and Guaranty Company continued the employment of Herbert W. Bryan as its attorney, and although said order had been entered, made an offer of compromise and settlement of the pending case No. 9214, of plaintiff Pawnee McKnight against Thomas E. Pettigrew, pursuant to its right so to do under the aforesaid insurance policy, and pursuant to the agreement hereinbefore related, and the said Pawnee McKnight made counter offers to the said insurance company of the amount for which he would settle, and the parties not reaching an agreement as to a fair amount for settlement, broke off negotiations.

'Thereafter, on said 17th day of February, 1955, the Circuit Court of Kanawha County, being engaged in the trial of another case, continued case No. 9214 for trial until the 18th day of February, 1955, at which time the said plaintiff herein, Pawnee McKnight, appeared for the first time in the court room and by his counsel, J. Campbell Palmer, III, moved for trial of his said case No. 9214.

'Thereafter, the said Herbert W. Bryan, attorney for the defendant, but acting solely for and on behalf of the United States Fidelity and Guaranty Company, objected to the trial of said case, and in support of his said objection, submitted the Special Plea to which this is a Replication.

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'Thereafter, for the first time this plaintiff, Pawnee McKnight, was advised and given information that a settlement had been reached between his insurance carrier, the Aetna Casualty and Surety Company, and Thomas E. Pettigrew in Case No. 9205, and that an order had been entered dismissing it. He did not then or thereafter ratify or approve said settlement.

'Thereupon, he joined with his counsel and adjustors for the United States Fidelity and Guaranty Company, the...