Garrett v. McRee

• Decision Date: 12 January 1953
• Docket Number: No. 4508.,4508.
• Parties: GARRETT et al. v. McREE et al.
• Court: U.S. Court of Appeals — Tenth Circuit

201 F.2d 250 (1953)

GARRETT et al. v. McREE et al.

No. 4508.

United States Court of Appeals Tenth Circuit.

January 12, 1953.

Goerge Siefken, Wichita, Kan. (W. A. Combs, Houston, Tex., on the brief), for appellants.

A. E. Zellers, Grindstaff, Zellers & Hutcheson, Weatherford, Tex., Andrew W. Wilcoxen, and Banker, Bonds & Wilcoxen, Muskogee, Okl., on the brief for appellees.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

This appeal involves the power of the trial court to fix and apportion attorneys' fees out of a fund recovered in a suit under the Oklahoma Wrongful Death Statute.

W. McRee of the State of Arkansas employed A. E. Zellers, an attorney of Weatherford, Texas, to assist him in a claim for damages for the wrongful death of his wife and injuries to himself growing out of an automobile accident in McCurtain County, Oklahoma. Alberta Lee Garrett, his wife's minor daughter by a former marriage, was also injured in the same accident and she employed W. A. Combs, an attorney at Houston, Texas.

After the husband and minor daughter, by her father and next friend, had joined in a suit in the Eastern District of Oklahoma for wrongful death of the deceased, the trial court dismissed the same for improper parties. The husband, McRee, was thereupon appointed administrator of the estate of his deceased wife in Arkansas, and the complaint was amended to assert the cause of action under the Oklahoma Wrongful Death Statute, 12 O.S.A. § 1053, in the name of the administrator for the benefit of the surviving husband and minor daughter. In separate causes of action, McRee also sought compensation for his personal injuries and damages to his automobile; and the minor daughter, through her father and next friend, sought separate damages for her personal injuries.

On a trial of the case the jury awarded McRee $350.00 on his personal claims; Alberta $100.00 on her personal claim; McRee as administrator was awarded $3,842.00 on the count for conscious pain and suffering and medical expenses. $20,000.00 was awarded for the economic loss sustained by the next of kin, and the jury having been instructed by the court at the request of counsel to divide this latter amount between McRee and Alberta, awarded McRee $5,000.00 and Alberta $15,000.00. Judgment was rendered on the verdict, and after affirmance in this court (Wilburn v. McRee, 193 F.2d 425), the total amount of the judgment plus interest, was deposited in court. Prior thereto Zellers filed an attorney's lien for 1/3 of the total judgment.

When the controversy over the division of attorneys' fees arose, Garrett, who had been appointed guardian of the person and estate of his minor daughter in the probate court of Harris County, Texas, intervened in the Oklahoma suit claiming the $15,000.00 awarded to his daughter free of any claims by Zellers for attorney's fees. The prayer was that the $15,000.00 be paid direct to the guardian for disposition by the probate court of Harris County, Texas. McRee as administrator, responded to the guardian's motion, alleging that prior to the institution of the suit he employed Zellers to prosecute the cause on behalf of himself and as administrator on a contingent fee basis of 33 1/3% of the amount recovered for the administrator, and that by reason of such contract he was obligated to pay the said fee as a necessary expense in the performance of his duties as administrator; that the said fee was just and reasonable for the services rendered. Wherefore the administrator moved the court to direct the payment of 33 1/3% of the total amount recovered for the administrator to Zellers as attorney's fees, or such amount as the court deemed reasonable.

Upon the issues thus joined, the trial court conducted a hearing in which it developed that after their employment the two attorneys concluded to join in a suit in the federal court in Oklahoma, each representing his client and looking to his client solely for compensation. That after it became apparent through advice of local counsel and the ruling of the trial court that the suit for wrongful death could be prosecuted only in the name of the administrator for the benefit of the spouse and surviving daughter, McRee was appointed administrator, and thereafter as such administrator, employed Zellers to prosecute the suit on behalf of himself personally and as administrator.

Both attorneys actively participated in the trial of the case which culminated in the judgment for the administrator.

In a memorandum the trial court, after reciting the facts, pointed out that the action for wrongful death and for conscious pain and suffering could be maintained only by the administrator, citing Aetna Casualty & Surety Co. v. Young, 107 Okl. 151, 231 P. 261; that McRee was technically correct in contending that it was his duty as administrator to collect and distribute the money awarded by the judgment; and that Garrett as legal guardian, was also technically correct in contending that he was entitled to the money belonging to his ward to be disposed of under the jurisdiction of the probate court in Texas. But a controversy having arisen concerning the payment of...