Alabama Produce Co. v. Smith

• Decision Date: 05 October 1933
• Docket Number: 8 Div. 510.
• Citation: 227 Ala. 330,150 So. 148
• Parties: ALABAMA PRODUCE CO. et al. v. SMITH.
• Court: Alabama Supreme Court

150 So. 148

227 Ala. 330

ALABAMA PRODUCE CO. et al. v. SMITH.

8 Div. 510.

Supreme Court of Alabama

October 5, 1933

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action for damages for personal injuries by G. F. Smith against the Alabama Produce Company, A. H. Peinhardt, and Virgil McKee and intervention by J. N. Powell. From a judgment for intervener, defendants appeal.

Transferred from Court of Appeals.

Affirmed.

O Kyle, Julian Harris, and A. J. Harris, all of Decatur, for appellants.

Eyster & Eyster and Wright & McAfee, all of Decatur, for appellee.

FOSTER Justice.

After this suit was reversed on former appeal, 224 Ala. 688, 141 So. 674, counsel for plaintiff filed a petition for intervention, alleging that plaintiff, without their knowledge or consent, undertook to and did settle the cause at a time when defendant knew that interveners possessed a statutory lien on the suit for their fee, and sought to prosecute the suit in their own behalf under section 6262 Code.

On the same day defendants filed pleas A and B-an accord and satisfaction had with the original plaintiff. They were prefaced "as a further defense to this suit, except as to accrued costs, as a plea since the last continuance." A demurrer to them was filed in the name of "plaintiff," but in which interveners did not join. Among the grounds assigned, the point was made that the attorneys had no knowledge and gave no consent to it. This was similar to the status as shown in Western Ry. v. Foshee, 183 Ala. 182, 62 So. 500.

The judgment recites that thereafter the petition for intervention was filed, and that issue was joined between the parties on pleas 1 and 2 as amended and on pleas A and B, that then the petition for intervention was amended by striking all the interveners save one, and that those stricken were allowed to withdraw joinder of issue on those pleas 1 and 2 as amended and A and B.

The court charged the jury in effect that the facts alleged in pleas A and B cut off Smith, the original plaintiff, but did not affect the rights of the interveners.

Defendant requested the affirmative charge, for the reason, among others, duly brought to the attention of the court, that issue was joined on pleas A and B, and that they were proven without conflict. The court at the time stated that his understanding was that they were not filed to the intervention, and that he would allow the pleadings to be recast. But such action in form does not appear in the record.

In our recent case of Simmons v. Holliday, 226 Ala. 630, 148 So. 327, we held that, if a plea is insufficient for one purpose, but sufficient for another, and no demurrer is interposed, we will not reverse the trial court for treating it for the purpose for which it is sufficient.

The demurrer addressed to pleas A and B was by the plaintiff, but none by interveners appear in the demurrer. The pleas were appropriate to the complaint, but not to the petition for intervention, since they only admitted a material allegation of it, and the court so treated them in charging the jury. The recital in the judgment that issue was joined between the parties upon pleas 1 and 2 as amended and on pleas A and B should be construed to refer to such issues between the parties as were appropriate, when the recitals of the pleas and the status of the rulings are considered, and such interpretation is not inconsistent with other features of the proceedings. The record shows a joinder in the issue by the parties and plaintiff had not been eliminated. He could deny the fact of settlement, or could have specially replied to those pleas. Lowery v. Ill. Cent. R. Co., 195 Ala. 144, 69 So. 954.

The procedure described in Alabama Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311, seems to have been pursued in this case. To take it literally, as there stated, it cannot be overlooked that the complaint and petition for intervention present different issues, and pleas to one may not be pertinent to the other. Section 9485, Code; Ex parte Gray, 157 Ala. 358, 47 So. 286, 131 Am. St. Rep. 62; Cortner v. Galvon, 223 Ala. 405, 137 So. 30; Awbrey v. Estes, 216 Ala. 66, 112 So. 529; Greene v. Greene, 220 Ala. 395, 125 So. 640.

Pursuant to our policy of construing pleas liberally, we think that A and B should be by us treated as was done by the circuit court, and that they were responsible only to the right of the original plaintiff, and did not present an issue to the intervention, and that proof of them should not deny a right of interveners to maintain their claim.

Counsel have argued that this court has not in its several cases properly construed the statute in respect to the amount of intervener's recovery when his client has made a settlement, but that the attorney should be limited in amount to the terms of the settlement as made by the client. The argument is that, after all, the claim in suit is the property of plaintiff, and that the right of the attorney should not exceed the power of the client to fix the amount of his claim; and that as now interpreted the statute prohibits the parties to a suit from agreeing upon a judgment.

But that argument does not take into account bad faith of the plaintiff as respects his attorney. When he makes an accord and satisfaction in derogation of the lien of the attorney without paying him, and without his consent, the parties all know that it is at least a legal fraud upon him, and it should be and is of no effect as to him. What the result would be if the parties in good faith consented to a judgment, on which the lien was enforceable, though less than the attorney wished, or made a...