Vivian Collieries Co. v. Cahall

• Citation: 184 Ind. 473,110 N.E. 672
• Decision Date: 07 December 1915
• Docket Number: No. 22486.,22486.
• Parties: VIVIAN COLLIERIES CO. v. CAHALL.
• Court: Supreme Court of Indiana

184 Ind. 473

110 N.E. 672

VIVIAN COLLIERIES CO.

v.CAHALL.

No. 22486.

Supreme Court of Indiana.

Dec. 7, 1915.

Appeal from Circuit Court, Clay County; John M. Rowley, Judge.

Action by Samuel Cahall against the Vivian Collieries Company. Judgment for plaintiff, and defendant appeals. Affirmed.D. P. Williams and Chas. J. Orbison, both of Indianapolis, for appellant. Frank S. Roby, of Indianapolis, for appellee.

MORRIS, C. J.

Action by appellee, mine employé, for personal injuries sustained, as alleged, by appellant's negligence, while obeying an obligatory order of appellant's employé. Acts 1911, p. 145, § 8020a et seq., Burns 1914. Trial by jury. Verdict and judgment for appellee for $5,000.

After this cause was submitted here, briefed by both parties on the merits, and after the record was distributed for the consideration of the court, a motion purporting to be by authority of appellee, to reverse the judgment on confession of error, was filed, on October 23, 1914. Subsequently a great number of motions and affidavits have been filed by the parties. From the documents filed on and subsequent to said October 23d it appears that appellee was seriously injured in appellant's coal mine on May 8, 1911; that about five or six weeks thereafter be employed G. S. Payne, a lawyer of Brazil, to sue appellant for damages for his injuries. Subsequently Wymond J. Beckett, lawyer of Indianapolis, was employed, and, by the terms of a written agreement with appellee, they agreed to prosecute the action for a contingent fee equal to 50 per cent. of such amount, if any, as might be recovered. These attorneys tried the case for appellee in the court below, while the law firm of McGregor & Harris represented appellant. Judgment was rendered June 22, 1912, and Payne and Beckett filed a statutory notice of intention to hold a lien on the judgment for their agreed attorney fee. Section 8278, Burns 1914. At the time of the accident appellant carried a liability insurance policy in the London Guarantee & Accident Company, which had offices in Chicago, Ill., with Edward C. Ryan as superintendent of its claim department. The insurance company appears to have managed appellant's case in the court below, and also here. The appeal involves a constitutional question, which gives this court jurisdiction, but it was erroneously taken to the Appellate Court. Because of such error it was subsequently transferred to this court. During the summer of 1913 appellee became angry at his attorney Payne about another matter in litigation, and, without his attorneys' knowledge, sought, through Ryan, of the insurancecompany, a compromise of the judgment. Ryan communicated with McGregor & Harris, the insurance company's attorneys at Brazil, and found that Payne and Beckett held a lien on the judgment, and because thereof refused at that time to consider appellee's offer. Later, during the summer of 1914, there was correspondence between appellee and Ryan on the subject of settlement, and appellee went to Chicago and held a conference with Ryan. Later, on September 18, 1914, by previous arrangement, appellee and Ryan met at the law office of McGregor & Harris, at Brazil, where appellee signed an affidavit reciting, among other things, that, while appellee had testified at the trial that, when injured, he was obeying an order of his superior, in fact, such testimony was false; that he went into the dangerous place of his own volition solely, to subserve a personal purpose; that at his first interview with Payne, five or six weeks after the accident, he so informed Payne, who told him he could not recover on such state of facts; that thereupon Payne persuaded him to file a complaint alleging injury while obeying an order of one of appellant's employés, Tom Rosser, a mine boss, and to swear to that effect at the trial; that at the trial appellee was placed on the witness stand, but when it came to testifying about the order given he was unable to remember the exact language he had been told to use in regard to the alleged order, and that at the following adjournment of court, and before he had concluded his evidence, he met Beckett, who said, “I took you to examine you, and ask you questions so that you could get through and testify to the order that Payne told you to tell, but, if you are going to act the damned fool, and not going to tell what we told you to tell, I may as well go back to Indianapolis and let the case go to hell;” that at the reconvening of court appellee's attorneys had him “recalled and went over this matter again with affiant, and induced affiant to swear to the matters which he did in said trial, and which matters pertaining to said order were not true.”

Previous to October 2, 1914, McGregor & Harris delivered a copy of said affidavit to Judge McBride at Indianapolis. On September 28, 1914, a writing was prepared in the office of McGregor & Harris, and signed by appellee, which recites that appellee has discharged Payne and Beckett, as his attorneys, and requests this court to recognize Robert W. McBride as his sole attorney. It also states that appellee submits his affidavit (the one of September 18, 1914) and other affidavits, and that on the showing thereof Beckett and Payne, because of their conduct, are entitled to no compensation for past services, and to no consideration at the hands of the court. The instrument is addressed to this court, and requests it to act on such motion as McBride may make.

On October 23, 1914, Judge McBride, as representing appellee, filed with the clerk of this court a motion to reverse the judgment on confession of error, and submitted to the discretion of this court what action herein, if any, should be taken with reference to the alleged misconduct of Beckett and Payne. Attached to the motion was appellee's said affidavit of September 18, 1914, and various other affidavits.

On October 30, 1914, the insurance company deposited with McGregor & Harris its check, payable to appellee, with instructions to deliver to him if the judgment in this cause be reversed and the cause dismissed and release signed.

A few days after Judge McBride filed said motion to reverse on confession of error appellee notified him not to further appear in the case. He also made an affidavit reciting that, while he signed said affidavit of September 18th, he did not and could not, because of illiteracy, read it; that, if the contents thereof were read to him, he did not understand the same; that there was no basis in truth for the statements therein made in relation to Payne and Beckett; that, when injured, he was working in obedience to the order of Rosser, and not otherwise; that his evidence given at the trial was true; that in signing the paper purporting to authorize Judge McBride to appear for him here he did not understand the nature or contents thereof. On becoming acquainted with the contents of this affidavit, Judge McBride, on November 4, 1914, withdrew as appellee's counsel here, but by written petition asked to be permitted to appear as amicus curiæ in relation to the charges against Payne and Beckett, to the end that if, on consideration by this court, the charges shall be found true, appropriate action should be taken, while, it not found true, the attorneys should be vindicated. Subsequently appellee moved to strike from the files the motion filed by Judge McBride on October 23d. Appellee and Payne and Beckett also filed separate motions to dismiss the appeal because of what is termed a fraudulent conspiracy. Thereupon appellant employed D. P. Williams and Charles J. Orbison, attorneys, to appear for it, and it has filed numerous affidavits in relation to the truth of the matters contained in appellee's affidavit of September 18, 1914, and in opposition to appellee's motions. Affidavits containing hundreds of pages of typewritten matter have been filed by appellant and appellee to support, or oppose, the several motions. We deem it unnecessary to set out even their substance.

[1][2][3][4][5] Messrs. Orbison and Williams for appellant have filed an elaborate brief in which they take the position that the truth of the matters stated in appellee's affidavit of September 18, 1914, has been established by a fair preponderance of the evidence contained in the several affidavits filed, notwithstandingappellee's subsequent repudiation thereof; that in such case this court has the power, and should exercise it, to reverse the judgment because of such facts, shown here for the first time. We are of the opinion that this court is without any jurisdiction to consider or determine the matter sought to be presented. Whether, when injured, appellee was acting in obedience to an order of appellant's employé, was of vital importance under the issues. In the court below evidence pro and con was introduced in relation thereto. If at the trial appellee testified falsely, that fact at the time was a legitimate subject of inquiry. Section 589, Burns 1914, provides for the trial court granting a new trial within one year after judgment for newly discovered causes therefor. Sections 645 and 646, Burns 1914, authorize the filing in a nisi prius court, within three years after rendition of judgment, a complaint to review the same for material new matter discovered since the rendition thereof. A nisi prius court of equity may at any time vacate a judgment against a defendant where it is shown that the apparent jurisdiction over the defendant's person was procured by the fraud of the plaintiff. Miedreich v. Lauenstein, 172 Ind. 140, 86 N. E. 963, 87 N. E. 1029. An equity court of original jurisdiction may, on proper showing, cancel an attorney's or other lien. This action is one at law, and the issues were triable by jury. On the appeal of such cases this court has no original jurisdiction. The appeal serves the purpose of a common-law writ of error, and none other. Whether the appellee was working under the order of a...