Babcock v. United Railways Company of St. Louis

• Decision Date: 06 June 1911
• Citation: 138 S.W. 53,158 Mo.App. 275
• Parties: MYRON BABCOCK, Appellant v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent
• Court: Missouri Court of Appeals

138 S.W. 53

158 Mo.App. 275

MYRON BABCOCK, Appellant v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent

Court of Appeals of Missouri, St. Louis

June 6, 1911

Submitted on Briefs May 2, 1911

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

Judgment affirmed.

James M. Sutherland for appellant.

(1) It will be seen by an examination of the pleadings that this question of ratification was not in the case. The appellate courts of the state have, in a long and unbroken line of decisions, declared that the issue of ratification or estoppel must be raised by the pleadings. Webb v Allington, 27 Mo.App. 559; Farnau v. Whitford, 39 Mo.App. 311; McClanahan v. Payne, 86 Mo.App. 292. (2) The court also erred in holding that, under the evidence plaintiff ratified the unauthorized and illegal act of attorney Sumner in compromising plaintiff's cause of action. Advertising Co. v. Wanamaker, 115 Mo.App 270; Peck v. Ritchie, 66 Mo. 114; Teasdale v. McPike, 25 App. 341; Johnson v. Berry, 3 Ill.App. 256; Hanks v. Drake, 49 Barb. 186; Hawkins v. Lange, 22 Minn. 557; Farwell v. Howard, 26 Iowa 381; Cooper v. Schwartz, 40 Wis. 54; Pittsburg v. Wooley, 12 Bush (Ky.) 451; Marshall v. Williams, 2 Biss. 255; Woodward v. Luydon, 11 Ohio 360; Matthews v. Fuller, 123 Mass. 446; Fisher v. Rockwell, 104 Mass. 167; Ruffner v. Hewitt, 7 W.Va. 585; Smith v. Jefferson Bank, 120 App. 527; Althoff v. St. Louis Transit Co., 204 Mo. 166; Beland v. Brewing Co., 157 Mo. 593.

Boyle & Priest and T. E. Francis for respondent.

(1) The question of lack of the agent's authority to compromise the case having been first raised by the reply, it was impossible for defendant to plead ratification, since, under the Code, the filing of a rejoinder or other pleading after the reply is not tolerated. Sec. 1811, R. S. 1909; Sec. 1830, R. S. 1909; Sidway v. Land Co., 163 Mo. 342; Kinney v. Miller, 25 Mo. 576. If, under the Code, it were permissible to file a rejoinder, it would have been proper for defendant to have pleaded ratification in a rejoinder. Cravens v. Gilliland, 73 Mo. 524; McLachlin v. Barker, 64 Mo.App. 511. (2) By retaining the proceeds of the settlement made by his agent for three months and commingling them with his own funds, and by failing to give defendant notice of his repudiation and disaffirmance of the settlement, plaintiff ratified the act of his agent. 1 Am. and Eng. Ency. Law, p. 1201; Haar v. Industrial Ben. Assn., 71 Hun. (N. Y.) 554; Tooker v. Sloan, 30 N. J. Eq., 394; Davis v. Krum, 12 Mo.App. 279, 287; McLachlin v. Barker, 64 Mo.App. 511; Watson v. Bigelow, 47 Mo. 413; Fahy v. Grocer Co., 57 Mo.App. 73. (3) The trial court's finding as a fact that plaintiff did not disavow the action of his attorney within a reasonable time is conclusive on appeal. Advertising Co. v. Wanamaker, 115 Mo.App. 270.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

This is an action in which plaintiff sought to recover as damages, for expenditures made and for which he had become liable, and for the deprivation of the society and companionship and services of his wife, by reason of her having been injured, as is alleged, by the carelessness and negligence of defendant and its agents in the operation and conduct of a street car in which the wife was at the time a passenger, the accident occurring in the city of St. Louis. For these plaintiff demanded judgment for $ 4400 and costs.

The answer, after a general denial and averment of contributory negligence on the part of the wife, avers that plaintiff, for a valuable consideration, towit, $ 250, paid him through his lawfully authorized attorney at law and in fact, executed a release, acquitting and discharging defendant from any liability accrued or thereafter to accrue to plaintiff on account of the alleged matters counted on in the petition, which sum and consideration for the release, so paid by defendant in settlement of plaintiff's alleged cause of action, plaintiff retains.

The release relied upon purports to be in consideration of $ 250 paid by defendant to plaintiff and purports to release defendant from all liability on account of all loss, etc., sustained by him by reason of the accident referred to, is dated June 14, 1906, and is signed, "Myron Babcock, per W. D. Sumner, Attorney in fact." The power of attorney from plaintiff, dated 13th of April, 1906, appointed one W. D. Sumner as attorney at law and in fact with power to represent plaintiff in or out of court in all transactions leading to the final disposition of the claim plaintiff had against defendant for loss of services, medical bill expended and loss of society and companionship which he, plaintiff, has sustained since the 6th of January, 1906, on account of his wife, Agnes Babcock, having been injured, it being agreed between plaintiff and Sumner that, in consideration of legal services rendered and to be rendered in the future in the prosecution of the claim by Sumner, that Sumner shall receive as his fee one-fourth of all amounts recovered "if settlement is effected before filing suit, and one-third of all amounts so recovered after said claim is filed in court," it being further understood between the parties that if nothing was received for said injuries then Sumner would not be entitled to any fee.

A reply, after denying every allegation contained in the answer, alleges that Sumner, the attorney at law mentioned in the answer, was not authorized and had no authority from plaintiff to execute the release set out in the answer and that the release was signed and executed without the authority, knowledge or consent of plaintiff and that Sumner mailed to plaintiff his check for $ 187.50, being part of the $ 250 named in the answer and which it is averred was the only money received by plaintiff from defendant or from Sumner and that within a reasonable time thereafter, to-wit, on or about the 7th of September, 1906, and prior to the bringing of this suit, plaintiff tendered this $ 187.50 back to defendant but defendant refused to accept it, and it is averred that plaintiff refused to accept and repudiated the settlement as aforesaid and is ready and willing and has ever since been ready and willing to return to defendant the $ 187.50 which it refused to accept as above.

The trial was before the court, a jury having been waived.

Plaintiff asked several declarations of law on the theory that he was entitled to recover, notwithstanding the release, and as to the measure of damages to which he was entitled. The declaration as to the measure of damages was given, but that covering the main case was refused. As to this declaration, after setting out the facts under which plaintiff was entitled to recover on account of the injury to his wife, it proceeds, in substance, to declare that the paper writing, referring to the power of attorney given to Sumner and in evidence, did not authorize him to settle or compromise plaintiff's cause of action and that unless the court found from the evidence that the plaintiff by "work" of mouth authorized Sumner to compromise the cause of action, or by his conduct or acts, after knowing that Sumner had signed the release to defendant in evidence, ratified and confirmed the action of Sumner, "and if the judge, sitting as a jury, believes from the evidence that plaintiff tendered back to the defendant $ 187.50, the full amount received by him from said Sumner as shown by the evidence, before the commencement of this suit, and that defendant refused to accept it, then the plaintiff is entitled to recover." The court refused this, plaintiff excepting. In lieu of all other declarations of law the court of its own motion gave this:

"The court, trying this cause without the intervention of a jury upon all the evidence, finds as follows:

"That plaintiff, on and after the 6th day of January, 1906, held a cause of action against defendant for loss of services and society of his wife, Agnes Babcock, and the expense of medical services, nursing and medicines, all caused by an injury to said Agnes Babcock, on one of defendant's cars, in the city of St. Louis, on or about the 6th day of January, 1906.

"That on or about the 13th day of April, 1906, plaintiff executed the written power of attorney, shown in evidence, whereby he employed one William D. Sumner to assert and collect such claim against defendant, and such power of attorney was shown to the defendant before the payment of the sum of $ 250, hereinafter mentioned; that on the 14th day of June, 1906, defendant and said Sumner compromised all claims theretofore held by plaintiff against defendant for and in consideration of the cash sum of $ 250 then and there paid by defendant to said Sumner as attorney of plaintiff, receiving in return for such payment the written release of said date read in evidence; that on said day said Sumner remitted his check for $ 187.50, being three-fourths of the sum so received by him, to the plaintiff, and retained one-fourth of said $ 250 as his compensation by virtue of said written power of attorney; that plaintiff received said check of $ 187.50 on the 16th day of June, 1906, and on said day cashed the same, and commingled the proceeds thereof with his own funds, and so kept them commingled until immediately prior to the institution of this suit, to-wit, about the 8th day of September, 1906, without protest or notice of disaffirmance to defendant. The court further finds from the evidence that said William D. Sumner has now left the city of St. Louis that his present whereabouts are unknown, and that he left no property or assets in this state or city. And the court further finds that under the terms of the power of attorney in question said Sumner had no original...