119 Iowa 179 | Iowa | 1903
The sole question in the case is the correctness of the court’s ruling on the motion to set aside the default and judgment." The action was to recover damages for personal injuries received by plaintiff' while acting as a lineman for the defendant company, due to the fact that he came in contact with an iron brace on one of the defendant’s poles, which had become charged with electricity, and received a violent shock, which precipitated him to the ground, a distance of some thirty feet, and caused the injuries of which he complains. It is charged in the petition, and, we must assume, was established to' the satisfaction of the court, that defendant was negl gent either in the construction or maintenance of the pole, and that plaintiff did not contribute to the injury by any negligence on his part.
’The exact claim is that defendant maintained a very tall pole on one of the streets in Sioux City, on which were strung many wires , attached to crossbars affixed thereto; the lower one of which was some thirty feet from the ground. These crossbars were braced with iron braces extending diagonally from the pole to the crossbars. Many months prior to the accident in question the Sioux City Electric Company, operating.a light plant in said city, made an upright addition to the pole described, and strung thereon its wires. From the top of the pole, as thus extended, wires ran down to whatisknown as a “converter,’* or small iron box, and from the converter extended down until they touched one of the iron braces above described. The wires were run from the top of the pole down to the converter and beyond for the purpose of supplying an adjacent storekeeper with light for his building. The defendant telephone company knew of this situation, and notified the electric company to remove its wires, but that company failed and neglected to do so.
Plaintiff was required to make some . changes in the telephone wires, and, having performed his duties, started
After talking the matter over, and concluding that •defense f-hould be made, it was agreed that A. A. and A. J. Van Wagenen, attorneys at law in Sioux City, Iowa, should be employed to defend this action. Smith’s understanding from the conversation was that Cook should notify the Sioux City attorneys of the company’s desire to employ them, while Cook understood that Smith should attend to the matter. As a result of this misunderstanding, no attorneys were in fact employed to conduct the defense, and the case went to judgment as before stated. There was no thought that Cook should personally appear in the case, but it was agreed, as before staked, that local attorneys at Sioux City should look after it. Neither Cook nor Smith knew of this misunderstanding until after the judgment has been rendered against the company. The motion to set aside the default was accompanied by an affidavit of merits, and also by a duly verified answer on behalf of the telephone company, to which we shall presently make some reference.
The only question, then, is whether or not the misunderstanding between Smith and Oook, occurring in the manner, it did, sufficiently excused the default, and entitled the telephone company to a setting aside of the judgment. Plaintiff insists that the failure of the telephone company to appear was due to negligence and carelessness on its part, and that it should not now be heard to complain; while the telephone company claims that it has excused the default by showing mistake, misunderstanding, and unavoidable casualty or misfortune. Defaults occurring through negligence or carelessness on the part of the judgment defendant or his attorney will not, of course, be set aside, for the law rewards the diligent, and not the careless. Moreover, one who, through carelessness or inattention to duty, brings misfortune upon himself, will not, as a rule, be heard to complain. But it has ever been the
On the record before us we must hold that the failure of the telephone company to appear was due to an honest misunderstanding between the general manager,. Smith, and the general counsel, Cook, as to who should employ the local attorneys at Sioux City. If this was due to negligence or want of ordinary care and attention, then, of course, the ruling of the trial court was correct, and should be sustained. But if, on the other hand, it was the result of mistake or misfortune, due to the limitations of the human mind, the infirmities of language, or other fortuitous circumstances, not contributed to by negligence or inattention to duty, then the default should have been set aside. We do not have before us the exact conversation between Smith and Cook, but the statement of each under oath is that they talked over the case, concluded there was a good defense, agreed upon the attorneys who were to appear for the company, and that, through misunderstanding as to which of the two men should notify the firm of attorneys at Sioux City to look after the case, no appearance was entered. We feel sure that the company intended to make defense. Indeed, that could hardly be disputed in the face of the record now before us, and plaintiff is not bold enough to claim in argument tbat the telephone company was seeking to secure some advantage by the
Plaintiff relies on Church v. Lacey, 102 Iowa, 235; Byrnes v. Insurance Co., 114 Iowa, 738; Williams v. Westcott, 77 Iowa, 332; Vinegar Co. v. Boddy, 108 Iowa, 538, and other like cases. Before referring to these, it is well to state that, to justify interference by this court with a ruling on a motion of this kind, a much stronger showing
The Church Case was one of pure forgetfulness on the part of the attorney, not induced by any ^misunderstanding. It is said in that case: “Mr. Gall’s failure to inform Mr. Clark, as he had promised to do, was not caused by accident, surprise, unavoidable casualty, or misfortune, but was clearly the result of his own neglect.” In the case at bar there was neglect to appear, it is true, but this failure was wholly due to misunderstanding. The only one of the cases which tends
Plaintiff further contends that a large discretion was vested in the district court in this matter, and that its action denying the motion should not be reversed, in the' absence of a showing of passion or prejudice. True it is that such rulings are largely discretionary, but it is also true that this discretion is a sound legal one, which, if erroneously, arbitrarily, or oppressively exercised, will be reviewed, and in the interest of justice and right may be set aside. We have already referred to the rule that we will be more inclined to interfere when the motion has been denied than where granted, for the very sound and obvious reason that trials on the merits are to be favored.
We are constrained to hold that the motion should have been sustained, and the order denying it must be REVERSED.