Zbryk v. B. F. Goodrich Co., 23263

Decision Date06 March 1961
Docket NumberNo. 23263,23263
Citation344 S.W.2d 138
PartiesBeverly Alice ZBRYK, Respondent, v. B. F. GOODRICH COMPANY, a Corporation, Appellant.
CourtMissouri Court of Appeals

Paul C. Sprinkle, Kansas City, for appellant.

Bernard Eveloff, Kansas City, for respondent.

SPERRY, Commissioner.

This is an action to set aside a default judgment obtained by plaintiff-respondent against defendant-appellant. The petition was in two counts, the first count being a 'petition for review', based on the Statute; the second count was based on allegations of fraud. The court denied and dismissed both counts. Defendant appeals.

The record discloses that, on Oct. 12, 1959, plaintiff was sitting in her car, parked near the curb and headed north on the east side of Prospect Avenue, a North-South street in Kansas City, Missouri, when defendant's truck proceeding north, collided with the rear end of the automobile causing plaintiff to suffer personal injuries. Her attorney, Mr. Eveloff, notified defendant's agents in writing, and also verbally, of her claim for damages. Defendant's insurer's claim adjuster (who is a licensed attorney) called on Mr. Eveloff and they discussed terms of settlement but, according to Mr. Eveloff's testimony, insurer offered $250 only. Eveloff refused that offer, but stated that he would recommend to his client a $750 settlement if insurer would make such an offer. The adjuster stated that $250 was his offer. Mr. Eveloff stated that he answered that it left plaintiff with no choice except to file suit and that the adjuster left, saying that he did not care what he did.

On Nov. 16, 1959, suit was filed seeking $10,000 damages. Personal service was had on defendant's authorized agent. The legality of the service is not questioned, but defendant's agent stated that he believed the summons and copy of the petition was a copy of correspondence, and was merely for filing, so he field the papers in the accident files of defendant. Defendant thereafter did nothing about it. Insurer was not notified of the pendency of the suit.

On Dec. 30, 1959, the cause came on for trial as a default case. The record discloses that the trial judge inquired of Mr. Eveloff if personal service had been had and was informed it had been. Thereupon, the judge announced that the cause would be heard as a default case.

Trial was to the Court and plaintiff testified to facts concerning the happening of the collision, as heretofore stated; that she suffered injuries to her neck, aggravating and making worse a previous injury she had received from which she had partially recovered; that she now suffered from headaches and other pains, and stated the extent of the medical care she had received. The Court was also advised, through written statements of plaintiff's medical doctor, of the nature, extent, and probable duration of her injuries and disabilities. The Court rendered judgment for $3,000 and instructed Mr. Eveloff to write defendant of the rendition of the judgment within ten days.

The record discloses that neither defendant nor insurer took any action in the matter. More than 30 days after the judgment was rendered Mr. Eveloff called insurer and inquired when the judgment would be paid. Defendant and insurer say that was the first information that either had of the existence of the judgment.

Mr. Eveloff was sworn at the suggestion of defendant and stated that he notified defendant, in writing, of his employment as attorney; that, after suit was filed and service had, he talked by telephone to one of defendant's agents about the case; that he did not thereafter contact either defendant or its insurer; that, at the time the judgment was rendered, the trial judge requested him to notify defendant of the rendition of the judgment; that he wrote a letter, which he addressed and mailed to defendant at one of its Kansas City stores, on that day, advising defendant of the action taken; that he mailed a copy of same to the trial judge and kept a file copy. He inquired if there was a copy in the Court files and the trial judge stated that there was none but also stated that such letters did not always get into the files. Eveloff produced a copy of a letter which he said was a copy of the letter mentioned and offered to call his secretary to prove that she typed and mailed it but the trial judge announced that it would not be required that the secretary be called.

Defendant produced witnesses from its various stores who testified that no such letter had been found in any of defendant's local store files.

Eveloff admitted that he personally talked with insurer's attorney in this present case. When asked about his responsibility to deal fairly with other attorneys, under the Code of Ethics, he stated that the claim adjuster did not tell him that he was a lawyer and that he did not know that fact.

We have carefully read the record and have set it out as fairly as we can without going into tedious detail. A petition for review in this kind of case is provided for in chapter 511 V.A.M.S. The two applicable sections are as follows:

'511.170. Petition for...

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3 cases
  • Marriage of Bradford, In re
    • United States
    • Missouri Court of Appeals
    • 25 Octubre 1977
    ...was filed because such a petition does not lie if the defendant has been personally served with process. Zbryk v. B. F. Goodrich Company, 344 S.W.2d 138, 140(1) (Mo.App.1961). Whatever counsel's reasons for filing the second, duplicative motion, we might regard the first motion as a motion ......
  • Rook v. John F. Oliver Trucking Co.
    • United States
    • Missouri Court of Appeals
    • 11 Diciembre 1973
    ...cause in which the defendant has not been personally served. Boggess v. Jordan, 283 S.W. 57, 59 (Mo.App.1926); Zbryk v. B. F. Goodrich Company, 344 S.W.2d 138, 140 (Mo.App.1961); Underwood v. Underwood, 463 S.W.2d 915, 917 (Mo.1971). In this case the record shows that personal service was m......
  • Underwood v. Underwood
    • United States
    • Missouri Supreme Court
    • 8 Marzo 1971
    ...v. Whitlock, Mo.App., 395 S.W.2d 468, 472(9, 10); McMahon v. May Dept. Stores Co., Mo., 374 S.W.2d 82, 87--88(2--4). See also Zbryk v. B. F. Goodrich Co., supra, 344 S.W.2d l.c. 140, discussing and denying application of appellant's citation of Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, ......

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