Dombey, Tyler, Richards & Grieser v. DETROIT, T. & IR CO., No. 15787.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: CECIL and O'SULLIVAN, Circuit , and SMITH
• Citation: 351 F.2d 121
• Parties: DOMBEY, TYLER, RICHARDS & GRIESER, Plaintiff-Appellee, v. DETROIT, TOLEDO & IRONTON RAILROAD COMPANY, Defendant-Appellant.
• Docket Number: No. 15787.
• Decision Date: 30 September 1965

351 F.2d 121 (1965)

DOMBEY, TYLER, RICHARDS & GRIESER, Plaintiff-Appellee,
v.
DETROIT, TOLEDO & IRONTON RAILROAD COMPANY, Defendant-Appellant.

No. 15787.

United States Court of Appeals Sixth Circuit.

September 30, 1965.

351 F.2d 122

John D. Holschuh, Columbus, Ohio, Alexander, Ebinger, Wenger & Holschuh, Columbus, Ohio, on brief, for appellant.

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

Before CECIL and O'SULLIVAN, Circuit Judges, and SMITH,^* District Judge.

O'SULLIVAN, Circuit Judge.

Plaintiffs-Appellees, Dombey, Tyler, Richards & Grieser, a Columbus, Ohio, law firm, recovered a $12,500 judgment against the appellant Detroit, Toledo & Ironton Railroad as their contingent fee under a representation contract with an injured railroad workman, one Craig. Whatever services these attorneys provided Craig were performed between November 14 and November 17, 1960, and consisted of the interview with Craig on November 14th at which they obtained the contingent contract, the opening of a file on the matter and one or two telephone calls to Craig on November 17. On that date Craig, with the knowledge and consent of the plaintiff attorneys, made a direct settlement of his claim against the defendant railroad for the sum of $50,000 and some other benefits. Plaintiffs' complaint charges the railroad with liability for their contingent fee of 25% of $50,000 on the ground that the settlement with Craig constituted an intentional interference with their representation contract, and also on the ground that the railroad had promised to be responsible for Craig's contractual debt to them for their fee. The District Judge found for plaintiffs upon a holding that defendant had intentionally interfered with the plaintiffs' representation contract with their client Craig and had induced Craig to rescind such contract. Dombey, Tyler, Richards & Grieser v. Detroit, Toledo & Ironton Railroad Company, 226 F.Supp. 345 (S.D.Ohio, 1964). The District Judge allowed plaintiffs 6% interest on the $12,500 award from November 17, 1960, the date when the railroad settled with Craig. Jurisdiction is founded on diversity of citizenship.

By agreement of the parties this case was submitted to the District Court, sitting without a jury, on the pleadings and depositions taken by the parties. From such depositions and the findings of the Court, it appears that Carl K. Craig, an employee of the Detroit, Toledo & Ironton, was injured in a work accident on October 11, 1960. Craig's injuries were serious and required almost immediate amputation of his left leg above the knee. Although plaintiffs state that Craig had a "valuable" and "dangerous" claim against the railroad, we have no information that would permit any conclusion as to the validity of such adjectives unless we assume that now all FELA claims are "valuable" and "dangerous."

Shortly after Craig's injuries, a report of his accident went to the Grand Lodge of the Brotherhood of Railroad Trainmen. This was promptly followed by a series of visits by one Taylor who was then an "investigator" for a Chicago law

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firm, Henslee, Monek and Henslee, and who solicited Craig to hire that firm to handle whatever claim Craig might have against the defendant railroad. The Chicago lawyers were among the Brotherhood's designated regional counsel. Notwithstanding some five visits to Craig at the hospital and at his home, Taylor was unable to get the business for his Chicago principals. Taylor requested Craig to write a letter to the Chicago firm asking them to come and see him. Craig refused. Thereafter Crawford, the local representative of the Brotherhood, continued to visit Craig, who asked concerning his hospital and doctor bills "and stuff like that" and requested that Crawford arrange for him to talk to somebody from the Lodge about these matters. Although Craig did not ask Crawford to get him a lawyer, Crawford asked Craig if he would see someone from the office of the plaintiff law firm. Craig agreed and Crawford brought plaintiffs Dombey and Richards to the Craig home on November 14. Dombey's firm was identified as being regional counsel for the Brotherhood. At this meeting, Dombey and Richards discussed matters with Craig and finally entered into an agreement giving their firm the exclusive right to prosecute Craig's claim and providing that the firm was to get 25% of any sum received through suit or settlement, "in consideration of services rendered." Plaintiff Richards said that Craig's wife counseled against signing the contract, saying that "you shouldn't be rushing into these things," but Craig said "I am going to have to have somebody help me on this. I'm going to sign this." Thereupon, Mrs. Craig began to cry, but was comforted by Dombey's assurance that they could have twenty-four hours to consider it and by Richards' statement that "we will hold it for a couple of days." In all events, it is clear that Craig thereafter considered the contract in force. Dombey and his partner thereupon went off on a hunting trip and did nothing in connection with Craig's claim except to open a file on the matter, send a letter¹ of representation to the railroad, and call Craig on the morning of November 17 with regard to living expenses.²

Between the date of Craig's injury and November 17 a claims representative of the railroad had called on Craig several times, but until then no talk of settlement was had. In the evening of November 17, two railroad representatives, one Woodard and another, called on Craig at his home and after some discussion offered him $50,000 in settlement of his claim against the railroad. Craig asked for an hour to consider the matter and the railroad representatives then left the Craig home. Craig told Woodard that he had made an agreement with the Dombey

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firm to represent him, but Woodard was not shown the agreement nor specifically advised that it involved a contingent fee. After the railroad men left, Craig called the local representative of the Brotherhood, Crawford, and told him that he was inclined to accept the settlement offer. Crawford called Dombey's partner. Dombey was notified and called Craig, telling the latter that he would be a "damn fool" to settle for $50,000, but to go ahead if he wished. As witnesses, Dombey, Craig and Woodard disagreed as to what was said by Dombey concerning his fee. It appears that Dombey and Craig were talking on the phone when Woodard returned to the Craig house. Dombey's account was that he told both Craig and Woodard on the telephone that he expected that his fee would be taken care of by "responsible parties" and specifically to Woodard that he "expected him to take care of our fee in the event that he settled the case with Craig." Dombey said that no amount of fee was mentioned to Craig or Woodard, but he assumed that Woodard would know that he had a contingent fee agreement³ even though he (Dombey) did not say so. The claim agent Woodard testified that he could not recall Dombey saying that he would expect the railroad to pay his fee and that Dombey made no reference to a contingent contract but merely advised "you know we represent that boy." Craig testified that Dombey said "what fee he had coming he was going to collect it" and that his fee would be only a nominal one. The District Judge found as a fact, however, that Dombey did not use the term "nominal fee" upon his view that an experienced personal injury attorney would not waive a valuable contract right "by telling a client over the telephone that he would charge only a nominal fee." We cannot say that such a finding of fact was clearly erroneous

Immediately following Dombey's November 17th conversation with Craig and Woodard, Craig requested that the railroad agree to be responsible for any fee that he might owe Dombey. Such an agreement was finally made, the railroad promising to be responsible for "any settlement to be made to the law offices of Dombey, Tyler, Richards & Grieser * * * for any fees that is owed to them till 11:30 P.M., November 17, 1960." At the same time, the claim agent typed a letter from Craig to Dombey stating that "I have decided to negotiate a settlement * * * in my own behalf," and that "this will be a notice that your services are no longer needed. You may issue a bill for services thus far rendered." Because this letter is important to the question of interference with Dombey's contract to represent Craig, we note that the District Court merely found that it was "prepared" by railroad representatives. The claim agent testified clearly that he merely typed such letter as dictated by Craig and his wife after Mrs. Craig experienced difficulty in attempting to type it on her own machine. Craig stated that he asked the agent to type it for him on the agent's portable typewriter.

Relevant also to the question of interference with the representation contract is the claim agent's testimony that although he knew Craig had retained counsel, he did not see the contract itself and understood from Craig that only a nominal fee was to be charged. The District Court found that the agent knew the contract was based on a contingent fee, but we have not been pointed to the testimony underlying this finding. Plaintiffs in their brief rely instead on the assertion that an experienced claim agent must be aware of the universal custom of attorneys to use such contracts in such cases, but we do not deem it important to determine whether this assertion is sufficient to support the District Court finding in view of our holding that in any event the claim of intentional interference has not been made out.

About a week after the settlement, plaintiff Richards came to the Craig

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home and, as recounted by Craig, "He wanted me to sign a statement saying that I had requested that his firm represent me, that they come and see me, that I requested for them to come and * * discuss this case — that was prior to November the...