Baucke v. Adams and Hawkeye Cas. Co.

• Decision Date: 30 April 1945
• Docket Number: No. 20592.,20592.
• Citation: 188 S.W.2d 355
• Parties: CYRILL G. BAUCKE v. J. ADAMS, THE TRAVELERS MUTUAL CASUALTY COMPANY, A CORPORATION, AND THE HAWKEYE CASUALTY COMPANY, A CORPORATION.
• Court: Missouri Court of Appeals

188 S.W.2d 355

CYRILL G. BAUCKE v. J. ADAMS, THE TRAVELERS MUTUAL CASUALTY COMPANY, A CORPORATION, AND THE HAWKEYE CASUALTY COMPANY, A CORPORATION.

No. 20592.

Kansas City Court of Appeals. Missouri.

April 30, 1945.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

REVERSED.

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles for appellants.

(1) The court erred in over-ruling the separate demurrers of the appellants at the close of plaintiff's evidence. (2) The court erred in over-ruling the separate demurrers of the appellants at the close of all the evidence because plaintiff's suit was based upon the theory of conspiracy and that theory was not proved because the evidence showed only that plaintiff's alleged clients settled their suits without plaintiff's consent which was a lawful act. Seegers v. Clothing Co., 66 S.W. (2d) 526, 334 Mo. 632; Jackson v. Milling Co. (Mo. App.), 118 S.W. (2d) 1054; Frank Schmidt Planing Co. v. Mueller (Mo. App.), 154 S.W. (2d) 610; Shaltupsky v. Brown Shoe Co., 168 S.W. (2d) 1083, 350 Mo. 831; Whitecotton v. Railway Co., 157 S.W. 776, 250 Mo. 624; Noel v. Railroad Co., 74 S.W. (2d) 7, 335 Mo. 687; Franklin v. Finance Co., 136 S.W. (2d) 112, 234 Mo. App. 973; Curtis v. Railway Co., 94 S.W. 762, 118 Mo. App. 341; R.S. Mo., Secs. 13337, 13338. (3) Such acts did not in any way eliminate remedy the plaintiff had for alleged claim for services. Woosley v. Wells (Mo.), 281 S.W. 695. (4) The court erred in failing to sustain the separate demurrer of appellant, The Hawkeye Casualty Company, at the close of plaintiff's evidence. (5) The court erred in failing to sustain the separate demurrer of appellant, The Hawkeye Casualty Company, at the close of all of the evidence. (6) The court erred in giving instruction lettered A on behalf of the plaintiff, which was an instruction covering plaintiff's case, and directing a verdict, because said instruction was at variance with the petition and proof. Gary v. Averill (Mo.,), 12 S.W. (2d) 747; Helms v. General Baking Co. (Mo. App.), 164 S.W. (2d) 150; White v. Thompson (Mo. App.), 176 S.W. (2d) 53. (7) The court erred in admitting affidavits in evidence which were admissible solely for the purpose of impeaching appellants' witnesses without laying a proper foundation therefor by permitting the witness to examine said affidavits before being questioned concerning the same. Hackelman v. Railway Co., 217 S.W. 618, 203 Mo. App. 123; Kersten v. Hines, 223 S.W. 586, 283 Mo. 623; Ebert v. Railway Co., 160 S.W. 34, 174 Mo. App. 45.

Walter J. Gresham for respondent.

(1) The petition stated all essential facts under the lien statutes. Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W. (2d) 1083; McCarty v. Hemker (Mo. App.), 4 S.W. (2d) 1088; Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118; Dano v. Sharpe, 236 Mo. App. 113, 152 S.W. (2d) 693; Noell v. Chicago & E.I. Ry. Co. (Mo. App.), 21 S.W. (2d) 937, 943; Taylor v. St. Louis Merchants Bridge Terminal Ry., 207 Mo. 495, 105 S.W. 740; Hale v. St. Louis Terminal R. Assn. (Mo. App.), 12 S.W. 941. (2) Defendants tried case as based upon lien statutes. National Bank of Commerce v. Laughlin, 305 Mo. 8, 264 S.W. 706; Palmer v. Shaw Transfer Co. (Mo.), 209 S.W. 882; Rishel v. K.C.P.S. Co. (Mo.), 129 S.W. (2d) 851, 856; Gerritzen v. L. & N.R. Co. (Mo. App.), 115 S.W. (2d) 44; Noell v. Mo. P.R. Co., 335 Mo. 687, 74 S.W. (2d) 7. (3) The requested instructions were contrary to the evidence. (4) The requested instructions were ambiguous. Dunn v. Dannaker, 87 Mo. 597; Hopkins v. Highland Dairy Farms, 348 Mo. 1158, 159 S.W. (2d) 254. (5) An abandoned defense passed out of the case. Linders v. People's Motorbus Co., 326 Mo. 695, 32 S.W. (2d) 580; Yuronis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518. (6) They withdrew an abandoned defense. Lovett v. K.C. Terminal Ry. Co., 316 Mo. 1046, 295 S.W. 89; Mitchell v. Violette (Mo. App.), 221 S.W. 777; McColgan v. Noble (Mo. App.), 29 S.W. (2d) 205; Israel v. Fanchon & Marco (Mo. App.), 58 S.W. (2d) 774. (7) The affidavits were independent evidence. Batsch v. United Rys. Co., 143 Mo. App 58, 122 S.W. 371; Mills v. Metropolitan Street Ry. Co., 282 Mo. 118, 221 S.W. 1; First National Bank v. National L.S. Comm. Co. (Mo. App.), 227 S.W. 640; Crabtree v. Bankers Life Ins. Co. (Mo. App.), 128 S.W. (2d) 1089, 1094; Expansion Realty Co. v. Geren, 185 Mo. App. 440, 170 S.W. 928; Talley v. Richart (Mo.), 185 S.W. (2d) 23; Shouse v. Dubinsky (Mo. App.), 38 S.W. (2d) 530, 534.

DEW, J.

The respondent, an attorney at law, brought suit against the appellants to recover attorney's fees claimed to be due him under alleged contract of employment with Agnes Fanning and Beulah Collet for the prosecution of their causes of action against appellant J. Adams, for personal injuries, in which causes of action appellants had satisfied a judgment of record in separate suits previously brought by other attorneys. Verdict and judgment against all the appellants were obtained by respondent below in the sum of $2450. The defendants appealed.

For convenience respondent and appellants will be hereinafter referred to as plaintiff and defendants.

Plaintiff's amended petition, in effect, alleged that at the times in question he was a licensed attorney at law; that on September 28, 1940, he was orally employed by Agnes Fanning and Beulah Collett to pursue their claims, by suit or otherwise, against J. Adams for personal injuries sustained September 25, 1940, whereby they agreed to pay the plaintiff fifty per cent of any amount realized on said claims by them; that pursuant to said employment plaintiff thereafter on October 9, 1940, brought suits against said J. Adams for the said two clients, respectively, in the Circuit Court of Jackson County; that thereafter summonses were issued in both cases, advising defendant Adams of plaintiff's said employment, and that defendant was further notified of the terms of the said contract of employment. The petition further alleged that following his employment, and without his knowledge, said two clients aforesaid employed other attorneys, who filed suits for them on said causes of action, respectively, on October 7, 1940, in said Circuit Court. It further alleged that Travelers Mutual Casualty Company had issued its policy, then in effect, indemnifying said Adams; that said company had contracted with the defendant Hawkeye Casualty Company for reinsurance, the effect of which was that said last named insurance company assumed all outstanding claims arising from policies then in force under existing policies of said Travelers Mutual Casualty Company. It was further alleged that said insurance corporations asserted and assumed the rights by privity of contract with defendant Adams and said contracts of insurance and reinsurance, to participate in the defense and settlement of the above mentioned claims and did so participate therein; that throughout defendants had full knowledge of the contract of employment of plaintiff; that for the purpose of defeating and avoiding plaintiff's right to compensation, said three defendants conspired with said Agnes Fanning and Beulah Collett to "exclude plaintiff from his rights therein," and in pursuance of said conspiracy they agreed with said two claimants to settle the said claims against J. Adams, provided they would do so without allowing plaintiff to participate in the transactions or share in the proceeds; that said proposition was agreed to by said two claimants; that pursuant to the conspiracy aforesaid, the three defendants, acting with said two claimants, caused the last mentioned suits to be consolidated for trial, agreed on the amount of judgment, and had judgment entered therein on or about April 23, 1941, in favor of Anna Fanning for $3400, and in favor of Beulah Collett for $1500, a total judgment of $4900. The petition further alleged that on the same day the three defendants satisfied said judgment by paying the same to said claimants, and in order to make effective the said conspiracy to deprive plaintiff of his fees, the payment was not made in the usual form of draft or check, but paid in cash to the clerk of the court and immediately withdrawn by said claimants, thereby depriving plaintiff of his fees under said employment.

The petition further stated that plaintiff had performed his duties fully under his contract as an attorney, from which employment he had never been discharged; that by reason of the facts alleged, the defendants are indebted to him in the sum of $2450, being fifty per cent of the amount paid by defendants on said claims.

The separate answer of defendant Jesse Adams charges that the plaintiff had based his action on Section 13,337, R.S. Mo., 1939, which provides for an attorney's lien for compensation on a client's cause of action; that suits had been brought by the plaintiff on behalf of Anna Fanning and Beulah Collett, and that suits therefor had likewise been brought by J.K. Owens and James H. Anderson, in the same court, and on identical issues; that after the filing of the respective suits, defendant Adams filed in all of said causes a motion to consolidate or to dismiss; that in said motions this defendant, confronted with a multiplicity of suits on the same subject-matter, moved the court to cause the plaintiffs Fanning and Collett either to consolidate their cases or to dismiss the said causes, or either of them; that on February 1, 1941, the court heard the evidence on said motions and said hearing was attended by the plaintiff Cyril Baucke, plaintiff in the instant case. The answer proceeded to set forth a transcript of the proceedings respecting the motions aforesaid, the substance of which was that the court advised Agnes Fanning that there were pending in said court two cases in which she was plaintiff against said J. Adams, one of which, No. 473,833, had been signed and filed by Cyril Caucke, as her attorney; that there was another case filed in...