Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. JOHN GUTKNECHT, Judge,
presiding. Reversed and remanded.
Rehearing denied July 1, 1968.
The genesis of this case was an alleged assault during a baseball game between the Cincinnati Redlegs and the Chicago Cubs on August 4, 1960. The defendant, William M. Martin, was a baseball player for the Cincinnati Redlegs and the plaintiff, James T. Brewer, was a pitcher for the Chicago Cubs. Martin was at bat with James Brewer pitching. The first pitch was near Martin's head. Following the second pitch, Martin's bat either left his hands or was thrown and landed between the pitcher's mound and the first base. Martin walked out apparently to retrieve his bat. An argument ensued between Martin and Brewer. On the basis of the record, it appears that the parties both proceeded toward each other with clenched fists and that Martin struck Brewer in the face. A general melee or brawl then followed on the baseball field. There was some evidence that another member of the Cincinnati team also struck Brewer. Brewer sustained a broken orbital bone and fracture in the cheekbone area. The injury was a severe one and apparently impaired Brewer's ability to pitch thereafter.
Plaintiff Brewer and the Chicago Cubs corporation filed a civil action against defendant Martin for damages. Acting through Cincinnati attorneys, the Cincinnati Redlegs engaged a certain Chicago law firm to represent Martin and the Cincinnati organization initially paid this firm an attorney's fee. This Chicago law firm filed an appearance and answer and continued to represent Martin in the action, although there was very little activity and Martin had limited contact with this law firm. In December of 1960 this firm got in touch with Martin with respect to having his deposition taken. The deposition was taken in California in December of 1960. At the time of making such arrangements in 1960, Martin was still a member of the Cincinnati Redlegs, but just prior to the taking of the deposition he was traded by the Cincinnati Redlegs to the Milwaukee Braves. He thereafter was traded to the Minnesota Twins in Bloomington, Minnesota.
The cause was not reached for trial until 1966. During such six-year period there was no contact between Martin and the Chicago law firm which represented him, except with respect to the deposition in December of 1960 and on a couple of other occasions which will be referred to later in this recital of facts. During such period there were also various stories and reports carried in the news media to the effect that the lawsuit would be dropped. There was, however, no official notice of any such dismissal given to defendant Martin. The record discloses that in a conversation between a representative of the Chicago law firm and Martin in 1960 at the time of the taking of the deposition, there was discussion of the possibility that Cincinnati Redlegs were not going to continue to pay Martin's attorneys since he had been traded by Cincinnati. This firm, however, continued as Martin's counsel until 1966 without contact, so far as the record discloses, either verbal or written, with defendant Martin.
As trial time approached, the Chicago law firm, realizing they were not going to be paid by Cincinnati Redlegs and because Martin himself had not offered to pay them, made plans to withdraw as counsel for Martin. On April 14, 1966, a member of this Chicago law firm, which represented Martin, wrote Martin in care of the Minnesota Twins in Bloomington, Minnesota, and advised Martin that the Cincinnati Redlegs had refused to pay the attorney's fees since Martin was traded to Milwaukee. The letter then continued as follows:
"I have not formally withdrawn from the case because from time to time Plaintiff's attorneys have suggested that the case would be dismissed. I have been informed today that the insurance company which paid Brewer's doctor bills is insisting that the case be tried.
"The case will probably be on the trial call subject to trial in a week to ten days. However since you, the Plaintiff, and the witnesses are baseball people, I anticipate no difficulty in having the case continued for trial until the end of the baseball season.
"This letter is to inform you that I can no longer continue to act as your attorney without adequate fee arrangements. After the case has been continued I shall make a motion to withdraw from the case. I would suggest that you immediately make arrangements for another lawyer to act in my place. Unless you secure counsel a default judgment can be entered against you which will, of course, endanger any assets you may have and would make your present salary subject to whatever legal procedures are available in Minnesota."
The letter was sent by Registered Mail and the return receipt showed the signature of a girl who worked in the Minnesota Twins' office. Martin acknowledged receipt of this letter and talked with a representative of the Minnesota Twins, his employer, at that time, about the lawsuit. He was told not to worry about the case as it would probably be dropped.
Thereafter, on May 23, 1966, a member of the same Chicago law firm sent Martin a Registered Letter containing a notice that the firm would appear in court on June 3, 1966, and move to withdraw as his attorneys. A girl in the office of the Minnesota Twins signed the return receipt. Defendant Martin asserted that he never saw or heard of this notice. On June 3, 1966, an order was entered allowing the Chicago law firm to withdraw as his attorneys and this firm then sent Martin a copy of such order by ordinary mail. Martin states that he never actually received a copy of such order. The Chicago law firm which had withdrawn then wrote the attorneys for plaintiff stating that they "assume that no action will be taken in the case without giving Mr. Martin himself notice at his address: William Martin, c/o Minnesota Twins, Bloomington, Minnesota." Apparently, no copy of this letter was sent to Martin. Martin had no further actual knowledge of the status of the lawsuit until after the default judgment.
As the case came up for trial, a jury was impaneled and heard evidence presented by the plaintiff only. No one appeared for Martin. The jury returned a verdict of $100,000 against Martin and specifically found that malice was the gist of the action. Judgment was entered upon the verdict by the court on November 28, 1966. Defendant Martin, who apparently heard of the action only after newspaper publicity brought it to his attention, immediately retained attorneys who filed a post-trial motion upon his behalf within 30 days after the entry of such judgment. These attorneys now represent Martin in the present proceeding. The motion sought to set aside the judgment under section 50(6) of the Civil Practice Act (1965 Illinois Revised Statutes, c 110, § 50 (6)). Following a hearing on the motion the trial judge reduced the judgment to $35,000 but retained the finding that malice was the gist of the action and also refused to set aside the default judgment. It is from such action of the court that defendant Martin has now appealed to this Court.
The issue before the Court is whether the trial court properly exercised its discretion in refusing to set aside the default judgment as against the defendant Martin. On appeal in this Court, defendant asserts that the determination of whether or not a court should set aside a judgment in the nature of default should be resolved so as to do substantial justice between the parties with the objective in mind of carrying out insofar as it is possible the determination of the matters involved on their merits. Defendant recognizes that in resolving this problem a court may well consider whether or not a defendant has a meritorious defense and whether or not defendant's delay in responding to the court's command actually jeopardized plaintiff's basic position. Defendant vigorously contends that the overriding reason, however, should be whether the result is fair and just. It is pointed out that a default is one of the most drastic actions a court may take to punish for disobedience, and unless there is a flagrant disregard of the court's command, a default (particularly with malice as the gist of the action) should be set aside on a motion made within 30 days of a judgment entry.
The issue which is presented in this case has been the subject of much analysis and discussion in recent cases in the State of Illinois. A general rule had evolved that a prompt application within a period of 30 days after entry of judgment should normally justify setting aside a default judgment, if there was a showing of a reasonable excuse for not having appeared or ...