Dombey, Tyler, Richards & Grieser v. DETROIT, T. & IR CO.

• Decision Date: 15 January 1964
• Docket Number: No. 5997.,5997.
• Parties: DOMBEY, TYLER, RICHARDS & GRIESER, Plaintiff, v. DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

226 F. Supp. 345

DOMBEY, TYLER, RICHARDS & GRIESER, Plaintiff, v. DETROIT, TOLEDO AND IRONTON RAILROAD COMPANY, Defendant.

No. 5997.

United States District Court S. D. Ohio, E. D.

January 15, 1964.

C. Richard Grieser, Columbus, Ohio, for plaintiff.

John D. Holschuh, Columbus, Ohio, for defendant.

WEINMAN, Chief Judge.

This is an action by a partnership of attorneys who seek to obtain from defendant twenty-five percent (25%) of the amount paid by the defendant railroad company in settlement of a claim of one of its employees who was injured October 11, 1960.

The complaint alleges that plaintiff firm entered into an agreement with Carl K. Craig whereby Craig retained plaintiff as his attorneys and gave the attorneys the exclusive right to prosecute his claim for damages against the defendant railroad company for injuries sustained by him on October 11, 1960 while he was employed by defendant. The agreement further provided that in consideration of the services rendered, the attorneys would receive twenty-five percent (25%) of whatever sum might be recovered through suit or settlement.

The complaint then alleges that defendant, with notice and knowledge of the aforementioned agreement between plaintiff and Craig, and without the consent of plaintiff, negotiated directly with Craig and induced him to enter into a settlement agreement with defendant to the exclusion of plaintiff, to breach his agreement with plaintiff, to attempt to rescind the agreement and to send a letter to the attorneys dismissing them as counsel.

The complaint further alleges that for the purpose of inducing Craig to settle his aforementioned claim directly with defendant to the exclusion of plaintiff, and as a further part of the aforementioned settlement agreement, the defendant promised Craig that the defendant would pay the attorneys' fees owed to plaintiff over and above the settlement of Fifty Thousand Dollars ($50,000.00). The plaintiff then prays for judgment in the sum of Twelve Thousand Five Hundred Dollars ($12,500.00) with interest from November 17, 1960, as provided by law, and costs.

The defendant's answer, for its first defense, denies the foregoing allegations. For its second defense, defendant states that the agreement entered into by plaintiff and Craig on November 14, 1960, was champertous, contrary to public policy, not the voluntary act and free act of Craig and was illegal, unenforceable and void. And for its third defense, defendant states that if the plaintiff had any right to receive a fee based upon a percentage of the agreement between plaintiff and Craig, then the plaintiff waived and relinquished any such right by virtue of an agreement to charge Craig only a nominal fee for services, if any, performed by it prior to November 17, 1960, which agreement was made November 17, 1960.

The Court has carefully considered all the evidence submitted in this case and, having concluded that it has jurisdiction of the subject matter and of the parties, now states the facts as found by the Court.

Carl K. Craig, an employee of the Detroit, Toledo and Ironton Railroad Company, was injured on October 11, 1960, and was immediately taken to the Oak Hill Clinic at Oak Hill, Ohio, where his left leg, which had been crushed in the accident was amputated above the knee.

Within a day or two after the accident a man named Don Taylor came to the hospital to see Craig, who was at that time still under heavy sedation. Taylor told Craig that he was an accident investigator for the Brotherhood of Railroad Trainmen. Taylor asked Craig to turn his case over to him or people he represented, which was a law firm in Chicago, Illinois, Hensley, Monek and Hensley. That law firm is regional counsel appointed by the Brotherhood of Railroad Trainmen. Craig refused to turn his case over to Taylor or the Chicago law firm and he told Taylor that he did not want the attorneys from Chicago. Notwithstanding this refusal, Taylor made four or five more unsuccessful attempts to induce Craig to change his mind.

Thereafter, Earl Crawford, a local lodge chairman of the Brotherhood of Railroad Trainmen, called at Craig's home and asked Craig if he would see the Dombey people, a Columbus, Ohio law firm. That firm, Dombey, Tyler, Richards and Grieser is also legal counsel for the Brotherhood of Railroad Trainmen. Crawford thereafter set up a meeting between Craig and the Dombey firm and on November 14, 1960, Alex Dombey and William A. Richards called on Craig at his home. On that day, the following agreement was voluntarily and freely entered into by the parties thereto.

"THIS AGREEMENT made this 15th day of November 1960, by and between Carl Craig of Springfield and the Law Firm of Dombey, Tyler, Richards & Grieser. I hereby retain the above attorneys and give them the exclusive right to prosecute my claim for personal injuries sustained Oct. 10 1960 at Jackson, Ohio, against The D T & I Railroad. Said attorneys in consideration of services rendered, shall receive 25 percent of whatever sum may be recovered through suit or settlement and any settlement shall be made only with my consent.

/S/ CARL KEITH CRAIG Client

The above named attorneys hereby accept and agree to this employment agreement.

/S/ ALEX S. DOMBEY Attorney"

On November 17, 1960, two representatives of defendant, Wayne Woodard, a claim agent, and A. T. Ward, a trainmaster, called on Craig at his home to discuss with him settlement of any claim he might have as a result of his injury. During the course of that conversation Craig told the defendant's representatives that he had "signed with the Brotherhood attorneys." Subsequent to that, the defendant's representatives made an offer to Craig of Fifty Thousand Dollars ($50,000.00). Craig requested that they give him an hour to consider the offer and to discuss it with his wife. They left the house and while they were gone Craig did discuss the matter with his wife and also called Crawford to tell him of the settlement offer. Crawford told Craig that he would call him back in half an hour. Crawford called Richards at Columbus who in turn called Dombey at his home in Columbus. Dombey thereupon called Craig. Dombey told Craig he would be a "damned fool" to accept the offer but that he would not stand in the way of Craig's settling the case, if that was what Craig wanted, but that he would expect responsible parties to take care of the fee.

While Craig and Dombey were talking on the telephone, Woodard, the claim agent, returned to Craig's home and he also spoke to Dombey. Dombey informed him that he expected the defendant railroad company to take care of plaintiff's fee, which was based upon a contingent fee contract, in the event that a settlement was reached with Craig. Thereafter, on the same day, Craig and the defendant agreed to a settlement of Craig's claim for Fifty Thousand Dollars ($50,000.00). Craig, however, as a result of his conversation with Dombey and as a condition of and prior to the settlement, insisted upon and received a written letter agreement, signed by Woodard which set forth that the defendant would be responsible...