Moore v. Robertson
| Decision Date | 24 April 1967 |
| Docket Number | No. 5--4156,5--4156 |
| Citation | 242 Ark. 413,413 S.W.2d 872 |
| Parties | Mary Alice MOORE, Administratrix et al., Appellants, v. Michael ROBERTSON et al., Appellees. |
| Court | Arkansas Supreme Court |
Bernard Whetstone, El Dorado, for appellants.
John M. Graves, Camden, and Louis Tarlowski, Little Rock, for appellees.
This action arises out of a head-on collision in Calhoun county between a car owned and being driven by Ezell Walters and a pick-up truck that its driver, Michael Robertson, had borrowed temporarily from its owner, Jim Ritchie, a filling station operator who used the truck in his business. There were two passengers in the Walters automobile: Clayton Moore, who was killed, and Wallace Montgomery, who was injured. Moore's widow and Montgomery, now the appellants, brought the suit, originally naming only Robertson and Ritchie as defendants. The principal question on appeal is whether the trial court abused its discretion in setting aside a default judgment against Robertson, the driver of the truck owned by Ritchie.
The complaint was filed on November 23, 1964. Ritchie was served with summons on November 27 and duly filed his answer on December 16. Robertson was served with summons on December 2, but he failed to file an answer within the time allowed by law. On January 11, 1965, on motion of the plaintiffs, the court entered a default judgment against Robertson on the issue of liability, with the question of damages to be heard at a later date. Also on January 11 the plaintiffs amended their complaint to bring in a third defendant, J. O. Ashcraft, asserting that at the time of the collision Robertson was employed by Ashcraft and was acting in the scope of his employment. (The original complaint had asserted that Robertson was employed by Ritchie.)
On February 12 Ritchie filed a motion to set aside the default judgment against Robertson. Ritchie asserted that his liability insurance company had undertaken his defense, as required by the policy. The motion then went on to allege:
That under the terms of the policy there is and will be a question of coverage with regards to defendant, Michael Robertson. In view of this, insurer through its agents and servants, contacted defendant, Michael Robertson, with regards to the summons served on him * * * and were advised in writing on December 11, 1964, that Michael Robertson would take appropriate action in order to answer the summons to avoid any default judgment being rendered.
Relying on the written statement of defendant Michael Robertson, defendant Jim Ritchie's insurer did not deem it necessary or proper to undertake the defense of Michael Robertson at that time. That had Michael Robertson not indicated that he intended to retain an attorney to answer the complaint filed against him, that even though there was and is a question of coverage under the terms of the policy issued to defendant Jim Ritchie, he would have undertaken the defense of Michael Robertson.
On February 23 Robertson filed his own motion to vacate the judgment against him, asserting the same facts as those set out in Ritchie's motion. The court heard and decided the matter before the expiration of the term at which the default had been taken. No testimony was introduced, but the plaintiffs admitted the assertions of fact in the motions. The court vacated the judgment, without stating its reasons. Later on the case was tried on its merits and Whether a default judgment should be vacated during the same term is an issue lying within the discretion of the trial court. Johnson v. Jett, 203 Ark. 861, 159 S.W.2d 78 (1942). Hence the question now before us is whether there was an abuse of discretion in this instance. We have concluded that there was, that the judgment should not have been vacated.
resulted in a judgment in favor of all three defendants.
At one time our statutes were markedly liberal in permitting trial courts to grant extensions of time for the filing of defensive pleadings and to set aside default judgments within the term. That liberality was greatly curtailed by the enactment of Acts 49 and 351 of 1955. Those acts were construed in Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439 (1957), and Pyle v. Amsler, 227 Ark. 785, 301 S.W.2d 441 (1957). We held that the 1955 statutes were mandatory in requiring a defendant to plead within the time fixed by law and in allowing a trial court to set aside an ensuing default judgment only upon a showing of unavoidable casualty.
Some two months before the Walden and Pyle cases were decided the legislature adopted Act 53 of 1957, which relaxed the strictness of the 1955 acts to the extent of declaring that 'nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.' Ark.Stat.Ann. § 29--401 (Repl.1962). In the case at hand there is no issue of unavoidable casualty. The question is whether the trial court abused its discretion in finding either excusable neglect or other just cause for vacating the judgment.
As far as Robertson himself is concerned, no excuse whatever is offered for his failure to file an answer. He had been served with a summons. He knew that an answer was required. He assured Ritchie's insurance carrier that he would take appropriate action in time to avoid a default. Yet he did nothing and offers no explanation for his delinquency.
Ritchie and his insurer are in no better position than Robertson. Ordinarily they would have no standing to question a judgment entered against a codefendant. Here, however, the insurer seeks to step into Robertson's shoes by raising the possibility that his liability to the plaintiffs may be within the coverage of Ritchie's policy. Yet how can the insurer be permitted to enjoy the benefits of Robertson's position without also submitting to its burdens? The company relied upon Robertson to act in its behalf, to protect it from the consequences of a default judgment. In the circumstances Robertson's inexcusable neglect must be imputed to the insurance company. We have often held that a party is bound by the negligence of his attorney in failing to file an answer. Dengler v. Dengler, 196 Ark. 913, 120 S.W.2d...
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