Hastie, Ganey and Freedman, Circuit Judges. Freedman, Circuit Judge (concurring in part and dissenting in part).
In this personal injury case defendants are appealing from an order denying their motion to set aside a default and a judgment entered thereon pursuant to a jury's assessment of damages in the amount of $195,000.
The accident in suit occurred August 5, 1958 and admittedly resulted in very severe permanently incapacitating injury to Eddie Graybeal, a minor on whose behalf this action was subsequently instituted. A week after the accident, Lawrence MacElree, Esquire, who had been retained in the interest of the injured youth wrote the defendant Joseph Fisher asking that Fisher's lawyer get in touch with him concerning a possible amicable settlement. Subsequently, Mr. MacElree met Francis Tworzydlo, Esquire, in the Chester County Courthouse and was informed that Tworzydlo was representing the Fishers in this matter. Settlement negotiations did not materialize.
This suit was filed on July 7, 1960 naming as defendants Joseph Fisher, his wife Florence and their minor son Howard. Mr. Tworzydlo asserts that he telephoned Mr. MacElree on July 29, 1960, requesting additional time to answer and was assured that he might have whatever time he wanted. Mr. MacElree states that he does not remember the conversation, but the court below credited Mr. Tworzydlo's statement, and so do we.
On October 5, 1960, Richard Reifsnyder, Esquire, who very recently had become associated with Mr. MacElree in the practice of law and to whom MacElree had assigned this case without mention of Tworzydlo's involvement in the matter, filed a motion for the entry of a default and for judgment against the three defendants, correctly averring that no appearance or answer had been filed on their behalf. The motion also contained an averment under oath that "to the best of his knowledge, information and belief", no defendant was an infant. It is now admitted that the defendant Howard Fisher was a minor, although that fact was then unknown to Reifsnyder. On October 5, 1960, the very day the motion was filed, the court entered a default as prayed and listed the case for future trial by jury to assess damages.
Jury trial had originally been demanded in the complaint, but on November 2, 1960 the plaintiff moved to transfer the case to the nonjury list and this motion was promptly granted. Then, on February 8, 1961, the plaintiff moved to place the case again on the jury list and this motion was granted.
All of the above outlined judicial proceedings after the filing and serving of the complaint were ex parte and without notice to the defendants.
Almost three years later, on October 30, 1963 the deputy clerk of the district court in charge of the calendar mailed to the defendants a notice to appear in court November 1 at 10:00 A.M. if they wished to contest the question of damages which would be tried that day. The defendants received this letter on October 31, 1963 and appeared in court the next morning accompanied by their attorney, Mr. Tworzydlo. They had received no other notice that a default had been entered against them or that damages were to be assessed.
It also appears that on October 30, 1963, before notice to the defendants, a jury was selected to try the issue of damages. When the defendants and their counsel appeared on the morning of November 1, counsel moved for a continuance on the ground that, because notice had been received only the preceding evening, the defendants were unavoidably unprepared for trial. This motion was denied, for the stated reason that a jury had already been selected and was waiting to try the matter. The court then suggested, and defense counsel orally agreed, that if subsequent consideration of the circumstances should result in setting aside the default and the question of liability should be litigated, the defendants would not seek a second assessment of damages but would be bound by whatever finding the jury should make in the hearing about to begin. The issue of damages was then tried forthwith. The jury returned a verdict of $195,000 and the same day judgment was entered on that verdict.
On November 12, 1963 the defendants moved to set aside the default and the judgment entered thereon. This matter was heard on affidavits and agreed facts. The motion was denied as to the adult defendants, Joseph and Florence Fisher, and granted as to the minor Howard Fisher.*fn1 Joseph and Florence Fisher have appealed.
The failure of counsel who had been retained by the defendants to ask the court for an extension of time for the filing of an answer soon after opposing counsel had given his consent was plainly negligent. Subsequently, despite his ignorance of the default entry, counsel's failure to file any pleading or take any step in the litigation in his client's interest for nearly three years and until notice of an imminent hearing to assess damages was grossly negligent and inexcusable.
Yet, we think it should be considered that the entry of default in all likelihood would have been avoided or quickly challenged but for questionable procedure and one serious, though unintentional, misrepresentation of fact by the plaintiff's counsel. The plaintiff's original and senior counsel knew that Francis Tworzydlo, a local attorney with whom he was acquainted, had been retained to defend against this claim. Moreover, about three weeks after the complaint had been filed he had acquiesced in Tworzydlo's request for more time to answer. Yet, two months later plaintiff's junior counsel requested and obtained an order of default without notice to Tworzydlo and without advising the court of the informal agreement between opposing counsel. It is candidly admitted that these omissions occurred because junior counsel was ignorant of conversations in which his senior associate had participated. In these circumstances, junior counsel undoubtedly acted in good faith and in accordance with applicable rules. But if his more informed senior associate had obtained this default without advising the court that he had consented to whatever additional time the defendant might require to answer, this withholding of relevant information would in itself have been enough to justify the setting aside of the default. In these circumstances we think failure of communication within a law office should not be permitted to impose a disadvantage upon the opposing party. Cf. Elias v. Pitucci, E.D.Pa.1952, 13 F.R.D. 13; Rogers v. Arzt, S.D.N.Y. 1941, 1 F.R.D. 581.
Another consideration stems from the fact that one of the three defendants, apparently the individual who is said to have been operating the tractor on the occasion of the plaintiff's injury, was the minor son of the two adult defendants. Rule 55, Federal Rules of Civil Procedure, clearly prohibits the entry of a default judgment against a minor until a guardian shall have been appointed for him and he shall have received notice of the application for judgment by default. In this case, the plaintiff erroneously informed the court that all of the defendants were adults and then proceeded against all of them without notice. Technically, no wrong may have been done to the adult defendants. However, the giving of legally required notice to their son ...