Power & Light Co. v. Smith

• Decision Date: 10 May 1933
• Docket Number: 23717
• Citation: 186 N.E. 712,126 Ohio St. 601
• Parties: The Northern Ohio Power & Light Co. v. Smith.
• Court: Ohio Supreme Court

186 N.E. 712

126 Ohio St. 601

The Northern Ohio Power & Light Co. v. Smith.

No. 23717

Supreme Court of Ohio

May 10, 1933

Pleading -- Omission of material allegation in petition, supplied by denial in answer -- Judgment not reversed for absence of pleading or allegation, when -- Judgment on agreed verdict for personal injuries vacated -- Fraud and collusion between claim agent and plaintiff's attorney.

1. Where a defect in a petition, to which no motion nor demurrer has been filed, consists in the omission of a material allegation, but the defendant's answer supplies such allegation by a denial of the omitted averment, and no reply is filed, and both parties ignore the absence of a reply, and at the trial offer testimony upon the issue raised in the defendant's answer, the defendant has not been prejudiced by the absence of such allegation or by the absence of such pleading, and a judgment rendered after trial upon such issue will not be reversed by this court upon error proceedings.

2. A petition was filed against an interurban traction company praying for the vacation of a judgment for personal injuries theretofore rendered against such traction company, upon the ground that such judgment was entered upon an agreed verdict through fraud of the attorney for the plaintiff in such personal injury suit. The record showed that the plaintiff had refused to authorize such settlement and was absent from court at the time of the rendition of such agreed verdict and that a release which had been submitted to such plaintiff, prepared by the defendant traction company, was never signed. The record also showed that the attorney for the plaintiff had notified the claim agent of the defendant company, several weeks prior to the rendition of such verdict and judgment, that his client refused absolutely to make a settlement upon the basis of the amount of such verdict and judgment, and notified such claim agent of such attorney's contract of employment as attorney in order that his fees might be protected. At the time of the entering of such agreed verdict the attorney filed an action on behalf of the husband of such client for loss of services, without authority from such husband, and drew an answer for such defendant company in the case filed on behalf of the husband which answer was verified at the attorney's request by the secretary of such company, and entered an agreed verdict and judgment in such case filed ostensibly on behalf of the husband. Held : That the record contains ample evidence of collusion between such claim agent and such attorney, and that in such case, when the petition does not contain any allegation as to knowledge or collusion on the part of the defendant, but the answer asserts lack of knowledge that such attorney for such plaintiff was not authorized to negotiate such settlement, and asserts good faith, and where both parties ignore the lack of a reply, and upon trial introduce testimony upon such issue of knowledge good faith and collusion, and the trial court finds that such judgment theretofore entered in such personal injury action was entered by fraud and irregularity and vacates such judgment, the defendant company has not been prejudiced by the lack of such allegations nor by the lack of such pleading, and such judgment of vacation of judgment will not be reversed by this court on error proceedings.

In this case an action was filed in the court of common pleas of Summit county, in which the petition was as follows:

"Now comes the plaintiff in the above entitled action and moves the court to vacate, set aside, and hold for naught a judgment heretofore entered in favor of this plaintiff on December 15th, 1927, against the defendant in case No. 57313, in the Court of Common Pleas, Summit County, Ohio.

"Plaintiff states to the court that said judgment was obtained by fraud in that one, Charles I. Parlett, who appeared as attorney for this plaintiff, represented to the court and jury that he was attorney at law for the plaintiff in said action, and duly authorized to represent her in making a settlement, and represented also to the court that he had conferred with the client, plaintiff herein, and that she had consented to an agreed verdict of Twenty Seven Hundred Fifty Dollars ($2750.00) in full settlement of her claim against the defendant, The Northern Ohio Power & Light Company, whereas in truth and in fact the said Charles I. Parlett had been hired by this plaintiff for the purpose of prosecuting her claim against the defendant herein, which was one for injury to her person and had been advised and directed by this plaintiff that her case should be tried and presented to a jury.

"That on December 12th, 1927, said cause was, during her absence and without her knowledge or sanction, presented to a jury, which by direction of court returned a verdict of Twenty Seven Hundred Fifty Dollars ($2750.00) without any evidence being adduced. That at the time said cause was presented to jury this plaintiff was ill and unable to attend court and did not know that same would be presented to a jury for disposition and that her attorney, Charles I. Parlett, had been directed by this plaintiff that he should not go into court and take an agreed verdict.

"Plaintiff further says that the agreed verdict, as aforesaid, was insufficient and without authority, and rendered as aforesaid without being regularly assigned for hearing, and that the judgment on same should be vacated and said case assigned for hearing.

"Plaintiff further says that she has been advised that the said, The Northern Ohio Power & Light Company, successors to the Northern Ohio Traction & Light Company, has paid some money to the said Charles I. Parlett upon said pretended judgment, but this plaintiff says that she has not accepted any part of same and has advised the defendant that she would not accept it, and has signed no release and made no settlement.

"Wherefore, plaintiff prays that said judgment aforesaid may be set aside and held for naught and that the said case be placed on the active list for trial, and that she be restored to all things which she has lost by reason of said pretended judgment, and that she may be given such other and further relief as she may be entitled to in the premises."

The answer admitted the recovery of a judgment by the plaintiff against the defendant in the sum of $2750, in connection with a claim of the plaintiff against the defendant growing out of personal injuries received by the plaintiff, admitted the employment of one Charles I. Parlett, an attorney at law, by the plaintiff to represent her in connection with the handling of her claim, and admitted the payment to Charles I. Parlett, as attorney for the plaintiff, of the sum of $2750 in full settlement and discharge of such claim and judgment, and the payment of costs. The answer further constituted a general denial of every other allegation, averment and statement contained in the petition, and contained the following additional allegations:

"By way of further defendant [defense] herein this defendant says that said claim of the plaintiff referred to in her petition was brought to the attention of this defendant by one Charles I. Parlett, an attorney at law and a member of this bar, who represented to the defendant that he was attorney for said plaintiff, duly authorized to represent her in connection with said claim, with full power and authority from said plaintiff to negotiate a settlement thereof.

"This answering defendant relying upon the representation of the said Charles I. Parlett, as aforesaid, and having no knowledge to the contrary and believing said representation to be true, negotiated a settlement with said Charles I. Parlett of plaintiff's claim and agreed to pay in full settlement thereof the sum of $2,750.00 which the said Charles I. Parlett agreed to receive and which he did receive."

No reply was filed to the answer.

A hearing was actually held in the case in March, 1930, before the court of common pleas of Summit county, but the case was continued from time to time until June 19, 1931, at which time an amended answer was filed, which in substance reiterated the statements made in the original answer, including the statement that the defendant in agreeing to pay the sum of $2,750 in controversy relied upon the representation of Charles I. Parlett that he as attorney for the plaintiff had full power and authority from the plaintiff to negotiate a settlement of the case, and that the defendant, "having no knowledge to the contrary and believing said representations to be true," thereafter paid to the clerk of the court of common pleas of Summit county such sum, together with costs of the action. The amended answer further asked that Charles I. Parlett and James A. Dillian, clerk of the court of common pleas of Summit county, be made parties defendant in the case. A motion was also filed asking that Charles I. Parlett and James A. Dillian be made parties defendant. This motion was denied. No reply was filed to the amended answer.

The court heard the case upon "the petition, the answer and the evidence," found that the judgment theretofore entered on December 15, 1927, in such personal injury action, was entered and obtained by fraud and irregularity, set aside the judgment, and ordered the case regularly assigned for trial. The Court of Appeals of Summit county affirmed this judgment.

The case comes into this court upon allowance of motion to certify the record.

Mr. R. H. Nesbitt, for plaintiff in error.

Mr. Carl M. Myers, for defendant in error.

ALLEN J.

It is not necessary to discuss the personal injury action filed by Texanna C. Smith out of which the judgment arose which was set aside upon the ground of...