Bauer v. Biel, 19441

• Decision Date: 22 September 1961
• Docket Number: No. 1,No. 19441,19441,1
• Citation: 132 Ind.App. 224,177 N.E.2d 269
• Parties: Lenhardt E. BAUER and Leonard P. Kincade, Partners, Doing Business as Bauer & Kincade, Attorneys, Appellants, v. John G. BIEL, Catherine L. Maners, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, Appellees
• Court: Indiana Appellate Court

Page 269

177 N.E.2d 269

132 Ind.App. 224

Lenhardt E. BAUER and Leonard P. Kincade, Partners, Doing

Business as Bauer & Kincade, Attorneys, Appellants, v. John G. BIEL, Catherine L. Maners, Berns Construction Co. and Employers Mutual Liability Insurance Company

of Wisconsin, Appellees.

No. 19441.

Appellate Court of Indiana, Division No. 1.

Sept. 22, 1961.

Berry, Kincade & Allen, Terre Haute, for appellants.

Dix, Dix, Patrick, Ratcliffe & Hicks, Terre Haute, for appellees Biel and Maners.

Stanley E. Stohr, Terre Haute, James V. Donadio, Geoffrey Segar, Indianapolis. Ross, McCord Ice & Miller, Indianapolis, of counsel, for appellees, Berns Const. Co. and Employers Mutual Liability Ins. Co. of Wisconsin.

AX, Judge.

This cause comes to us by reason of the refusal of appellants to plead over after the court below sustained demurrers to a first and second paragraph of appellants' second amended complaint.

Appellants' first paragraph of amended complaint appears to be an action in tort for damages in defrauding appellants out of their right to collect attorney fees in connection with a Workmen's Compensation proceeding. This first paragraph, omitting the caption, reads as follows:

'Plaintiffs complain of defendants, and each of them, and for amended complaint herein, allege and say:

'1. That plaintiffs are partners, duly admitted to and engaged in the practice of law in the City of Terre Haute, Indiana, and have been so engaged at all times mentioned herein.

'2. That prior to the 15th day of October, 1952, Howard F. Maners was an employee of defendant, Berns Construction Co., and while engaged in performing the duties of his said employment, for said defendant, received fatal injuries causing his death. That at the time of the death of the said Howard F. Maners, defendant Berns Construction Co. was insured and carried compensation insurance for the death of any of its said employees with defendant, Employers Mutual Liability Insurance Company of Wisconsin.

'3. That on or about October 15, 1952, defendant, Catherine L. Maners, consulted with and employed plaintiffs to represent her in an action or claim for damages on account of and as the result of the wrongful death of Howard F. Maners in her action or claim for Workmen's Compensation under and pursuant to Indiana Workmen's Compensation Act.

'4. That plaintiffs herein accepted said employment to represent defendant, Catherine L. Maners in her claim or action for compensation, under and pursuant to the Indiana Workmen's Compensation Act, and had numerous conferences pertaining thereto with said defendant, made extensive legal research in connection therewith, and advised and counselled with said defendant pertaining to her rights and compensation thereunder. That in addition thereto, plaintiffs filed a claim or action for Workmen's Compensation pursuant to the Indiana Workmen's Compensation Act, which said claim and action was duly filed with the Industrial Board of the State of Indiana.

'5. That thereafter said defendant, Employers Mutual Liability Insurance Company of Wisconsin, as the compensation carrier of defendant, Berns Construction Co., had numerous conferences with plaintiffs herein, as attorneys for and on behalf of defendant, Catherine L. Maners, in an attempt to negotiate a settlement with said plaintiffs for compensation on account of said wrongful death, and offered to pay compensation benefits on account of said wrongful death in the approximate sum of $3500.00.

'6. That said defendant John G. Biel, is an attorney duly admitted to practice law in the State of Indiana, and said defendant Biel, and defendants, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, through their agents and servants, were acquainted with and had knowledge of the provisions of the Indiana Workmen's Compensation Act and knew and had knowledge, at all times mentioned herein, that if and in the event an award was made and entered into and approved by the Industrial Board of the State of Indiana, and plaintiffs herein, were attorneys of record for and representing defendant, Catherine L. Maners, in her claim for compensation for said wrongful death, that said Board would allow and award plaintiffs herein attorneys' fees for representing said claimant.

'7. That said defendants, John G. Biel and Catherine L. Maners, and defendants, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, through their agents and servants, knew and had knowledge at all times mentioned herein that plaintiffs were the attorneys of record for and represented said defendant Maners, in said claim for compensation, but notwithstanding said knowledge on the part of all defendants herein, said defendants entered into a plan and conspiracy of deceit to cheat and defraud plaintiffs out of their attorneys' fees and compensation due to plaintiffs herein for services rendered in connection with said claim for compensation for said wrongful death, and as a part of the plan, defendant, John G. Biel, and defendants, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, induced defendant, Catherine L. Maners, to settle said claim or action for damages on account of said wrongful death, for the sum of $1200.00, and that the said defendants did settle said claim or cause of action for compensation on account of said wrongful death, for $1200.00, with the knowledge and intent to then and there cheat and defraud plaintiffs of their said attorneys' fees for services rendered, and for which plaintiffs were rightfully entitled thereto.

'8. That said defendants at all times knew that plaintiffs herein were entitled to attorneys' fees of approximately $500.00, on a settlement of $3500.00, which said amount had been negotiated, as hereinabove alleged, and that said attorneys' fees were reasonable for services rendered, and that the Industrial Board would fix and award plaintiffs herein said attorneys' fees.

'9. That said defendants herein, and each of them, entered into their plan of conspiracy by making said settlement direct with defendant, Catherine L. Maners, for the sum of $1200.00, without the knowledge, consent or approval of plaintiffs herein, and while plaintiffs herein were still attorneys of record, all within the knowledge of said defendants, and thereafter in pursuance of said plan, had the necessary papers executed and the claim and cause of action disposed of which was pending before said Industrial Board, then and thereby defrauding plaintiffs of their said attorneys' fees in the sum of $500.00, all to plaintiffs' damage in the sum of $500.00.

'10. That said defendants herein, and each of them, in carrying out their plan of conpiracy, as alleged herein, caused the appearance of said plaintiffs herein to be withdrawn as attorneys for defendant, Catherine L. Maners, before said Industrial Board, and said Industrial Board did not know at said time that said plaintiffs were still the attorneys for said defendant, Catherine L. Maners, and that after said defendants made said settlement, the said defendants petitioned the said Industrial Board not to allow any attorney fee, the said Industrial Board then not having any knowledge that the withdrawal of plaintiffs as attorneys of record was done by deceit and fraud and a part of the conspiracy, and said Industrial Board, acting on behalf of the defendants herein, allowed no attorney fees, as prayed by said defendants' petition, and said plaintiffs were not notified of said petition or the ruling of said Industrial Board until after time for review had passed, and were at no time served with any notice that any petition was pending or had been ruled upon, or that their appearance as attorneys of record for defendant, Catherine L. Maners, had been withdrawn.

'Wherefore, plaintiffs sue and demand judgment against said defendants, and each of them, in the sum of $500.00, costs of this action, and all other just and proper relief.'

Appellants' second paragraph of amended complaint apparently proceeds upon the theory of breach of contract for payment of attorney fees for service rendered in a Workmen's Compensation proceeding, and omitting caption, reads as follows:

'Plaintiffs complain of defendants, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, and for second paragraph of amended complaint herein, allege and say:

'1. Plaintiffs herein incorporate by reference and make a part of this second paragraph of amended complaint, all of the allegations of rhetorical paragraphs 1, 2, 3, 4, 5, 6, 7, and 8 of the first paragraph of amended complaint herein.

'9. Plaintiffs further allege that upon said settlement of said claim or action for Workmen's Compensation was made by defendants herein, and said claim and action pending before the Industrial Board of the State of Indiana, that the agents and servants of said defendants, Berns Construction Co., and Employers Mutual Liability Insurance Company of Wisconsin conferred and negotiated with plaintiffs herein, pertaining to the amount due and owing plaintiffs berein for legal services rendered as hereinabove alleged, and said defendants, Berns Construction Co. and Employers Mutual Liability Insurance Company of Wisconsin, through their agents and servants, fixed and determined the...