Barrett v. Indemnity Ins. Co. of North America

• Decision Date: 28 January 1927
• Docket Number: 91.
• Parties: BARRETT v. INDEMNITY INS. CO. OF NORTH AMERICA.
• Court: Maryland Court of Appeals

136 A. 542

152 Md. 253

BARRETT v. INDEMNITY INS. CO. OF NORTH AMERICA.

No. 91.

Court of Appeals of Maryland

January 28, 1927

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

"To be officially reported."

Action by Franklin P. Barrett against the Indemnity Insurance Company of North America. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

E. P Keech, Jr., and Robert R. Carman, both of Baltimore (Keech Deming & Carman, of Baltimore, on the brief), for appellant.

James J. Carmody, of Baltimore (Edward M. Biddle, of Philadelphia Pa., on the brief), for appellee.

OFFUTT J.

On March 28, 1923, John Edgar Shilling, whilst in the employ of the Pen Mar Company, was killed in an accident which arose out of and in the course of that employment under circumstances which created a legal liability in Clough & Maloy, Inc. Compensation was claimed under article 101, C. P G. L. of Md., by Effie Shilling, his widow, for herself and her infant children, and the State Industrial Accident Commission, on March 4, 1923, entered an award directing the Indemnity Insurance Company of North America, the insurer, to pay compensation to the claimant at the rate of $18 per week for 277 7/9 weeks, and a sum not to exceed $125 for funeral expenses incurred by the claimant in connection with the death of said John E. Shilling. The insurer acquiesced in that award, and made payments thereunder as they accrued. The insurer having advised the claimant that in its opinion the death of Shilling did not occur under circumstances creating a legal liability in Clough & Maloy, Inc., or in any person other than his employer, and having failed and refused to proceed against Clough & Maloy, Inc., to enforce any such supposed liability, she employed Franklin P. Barrett, and attorney at law, practicing his profession in the courts of Baltimore city, to institute on her behalf and on behalf of the infant children of the decedent proceedings against Clough & Maloy, Inc., to recover such damages as they and the insurer were entitled to recover from it by reason of the death of the said John Edgar Shilling. Thereupon Barrett, with certain other attorneys whom he associated with him, with the knowledge and acquiescence of the insurer, instituted in the superior court of Baltimore city, an action at law for the use of the said Effie Shilling and the infant children of the decedent, and as well for the use of the insurer, to recover such damages, which resulted in a verdict and judgment for the plaintiffs for $15,000, apportioned as follows:

To the Indemnity Insurance Company of North America .. $5,12500

To Effie Shilling, widow .............................. 5,00000

To Ruth E. Shilling, infant ............................. 50000

To Dorothy M. Shilling, infant .......................... 87500

To John Walter Shilling, infant ....................... 1,50000

To Edith May Shilling, infant ......................... 2,00000

That judgment was affirmed on appeal, and was paid. Mr. Barrett, who with his associates conducted the entire proceedings for the plaintiffs under his contract with Mrs. Shilling, collected from her as compensation for his services one-third of the amount paid to her under the judgment, and then demanded that the insurer also pay him a fee for recovering for it the sum of $5,125, which it, under the award of the State Industrial Accident Commission, was obliged to pay to Mrs. Shilling, and, upon its refusal to make such payment, he brought this suit against the insurer. The plaintiff, in his narr., in addition to these facts, alleged:

"That, by reason of the services so rendered by him to the defendant and accepted by it, he was and is entitled to claim and have of the defendant compensation for his services in such amount as the said services may be fairly and reasonably worth, and he has demanded the same, but the defendant has refused to recognize any obligation to the plaintiff, and has refused his demands."

A demurrer to that narr. was overruled, and the case finally proceeded to trial on an agreed statement of facts. The only material difference between the statement of fact contained in the narr. and the facts agreed upon by the parties, was that the narr. alleged that plaintiff's services were "accepted" by the defendant, whereas no such fact is found in the agreed statement. At the close of the case and upon the agreed statement of fact, the court instructed the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and that their verdict should be for the defendant. A verdict was accordingly returned for the defendant, and, from the judgment thereon, this appeal was taken.

The only exception contained in the record was taken to the action of the court in directing a verdict for the defendant, and the question which it presents is whether there is any legal obligation upon the appellee, the insurer, to pay any part of the appellant's fee for his services in conducting the litigation which resulted in the payment of $5,125 to the appellee to reimburse it for the liability imposed upon it by the award of the State Industrial Accident Commission.

The appellant's contention, as we understand it, is that, since through the services rendered by Barrett, as the attorney for Mrs. Shilling and the infant children of John Edgar Shilling, the appellee received $5,125 to reimburse it for the liability imposed upon it by the award of the State Industrial Accident Commission, it is bound to pay the appellant a proportionate part of what such services were reasonably worth, based upon the ratio which the amount paid appellee bears to the whole amount of the judgment, and he asserts that it is liable for such payment on any one of three theories: (1) That there was a quasi contract; (2) that there was an implied contract; and (3) that there was an express contract between the parties under which appellant undertook to make such payment.

At first glance natural justice would seem to support the plaintiff's claim, whatever his legal rights may be, but a more careful examination of the evidence corrects that impression.

Mrs Shilling and her children had, through the death of her husband, suffered a loss of $15,000, of which amount the insurer was bound under the award to pay $5,125, and, while she and her children only received $9,875 under the judgment against Clough & Maloy, Inc., nevertheless from both sources she and her children received either in cash or its equivalent the full amount of the loss they had sustained, to wit, the sum of $15,000. If she had elected not to claim compensation under article 101, C. P. G. L., but to proceed against Clough & Maloy, Inc., under article 67, C. P. G. L. of Md., in the first place, she would naturally have been required to pay all counsel fees incurred in the prosecution of such suit. And if, in establishing her claim under article 101, Bagby's Code, she had employed counsel, she and not the employer or insurer would have been...