Bush v. Prescott & N. W. Ry. Co.

• Decision Date: 27 May 1907
• Citation: 103 S.W. 176
• Parties: BUSH et al. v. PRESCOTT & N. W. RY. CO. et al.
• Court: Arkansas Supreme Court

103 S.W. 176

BUSH et al. v. PRESCOTT & N. W. RY. CO. et al.

Supreme Court of Arkansas.

May 27, 1907.

On Rehearing, June 17, 1907.

Appeal from Nevada Chancery Court; Jas. D. Shaver, Chancellor.

Action by J. O. A. Bush and others against Prescott & Northwestern Railway Company and another. From an adverse decree, plaintiffs appeal. Affirmed as to plaintiff Smith, and reversed as to plaintiff Bush.

See 89 S. W. 86.

W. V. Tompkins and J. O. A. Bush, for appellants. C. C. Hamby, for appellees.

HILL, C. J.

Mrs. Mary A. Smith brought an action against the Prescott & Northwestern Railway Company for damages for causing the death of her son, Ed. Mecklin. She recovered judgment for $1,200, and the railroad company appealed to this court, where it was reversed. P. & N. W. Ry. Co. v. Smith, 70 Ark. 179, 67 S. W. 865. This court held that she had established a cause of action against the defendant, but that there was misconduct in the trial of the case to the prejudice of the appellant, which called for a reversal and a new trial. Mrs. Smith employed J. O. A. Bush, an attorney at law, to represent her in the case, agreeing to give him a contingent fee of one-half of the recovery. Pending the trial of the cause in the circuit court, Mr. Bush formed a partnership with Mr. Guy Nelson, and Mr. Nelson appeared with him in the trial of the case. After the judgment was rendered, and before its reversal, Nelson bought Mrs. Smith's half interest in said judgment in consideration of a farm, valued at $400, which he conveyed to her. After the reversal a new contract was made between Mrs. Smith and Mr. Bush and Mr. Nelson; Mr. Bush was still to have one-half of the recovery, Mrs. Smith was to have one-fourth of the recovery above $1,200, Nelson one-half of the recovery up to $1,200, and one-fourth above that sum. Subsequent to this agreement Mr. Nelson procured an assignment from Mrs. Smith of all her interests in the judgment, and with that assignment he settled the suit with the railroad company, and received a consideration of $500 from it. The partnership between Bush and Nelson had been dissolved for some time prior to this. Mr. Bush and Mrs. Smith brought action against the railroad company and Mr. Guy Nelson to set aside Mrs. Smith's assignment to Nelson and his compromise. The defendants interposed a demurrer to the complaint. The court sustained the demurrer, and the plaintiffs therein appealed to this court, and this court reversed the decree, and held that the complaint was good on its face. Bush v. Ry. Co., 76 Ark. 497, 89 S. W. 86.

The allegations of the complaint are fully stated in the opinion in said case. After reversal Mr. Bush filed an amendment to the complaint, alleging that at the time the railroad company and Nelson compromised the claim the railroad company had actual knowledge of the contract between him and the plaintiff, Mrs. Smith, and knew that he was to receive 50 per cent. of the possible recovery. This amendment was evidently intended to enable him to get the benefit of section 4457, Kirby's Dig., as construed by this court in K. C., F. S. & M. Ry. Co. v. Joslin, 74 Ark. 551, 86 S. W. 435. Mr. Nelson died after the decree was reversed, and the action was revived in the name of C. C. Hamby, as administrator of his estate. On the trial the testimony of six witnesses was taken: Mr. Bush, Mrs. Smith, Miss Carrie Mecklin, daughter of Mrs. Smith, John B'Shears, the notary who took the acknowledgment of Mrs. Smith to the last assignment to Nelson, on behalf of the plaintiffs, and the testimony of Mr W. N. Bemis, president of the railroad company, and Mr. Hamby, its attorney, on behalf of the defendant. And also the evidence of Mr Tompkins was taken on a collateral issue. The chancellor excluded the testimony of Mr. Bush and Mrs. Smith in so far as it related to conversations and transactions between Mrs. Smith and the deceased, Guy Nelson, in his lifetime, and, considering only the other testimony, was of opinion, and found, that the plaintiffs failed to prove their cause of action, and dismissed the complaint.

The first question presented is as to the rulings of the court in excluding the testimony of Mrs. Smith and Mr. Bush as to the transactions with Guy Nelson. The original complaint prayed that the assignment from Mrs Smith to Guy Nelson, and the compromise between Nelson and the railroad company, be annulled and set aside and canceled, and that the plaintiff Mrs. Smith recover of the railroad damages for the negligent killing of her son. This relief would have enabled Mr. Bush to have recovered, if Mrs. Smith recovered, his contingent fee through the judgment. On the former appeal the status of Nelson's rights under the allegations of the complaint was determined in so far as this action is concerned; and the effect of this action on a possible litigation between the railroad company and Nelson's estate to recover the amount paid in compromise would not render the inhibition against testimony as to transactions applicable in this action. Therefore the only judgment that could be rendered against his administrator in this action would be a judgment for costs; but that may be a substantial judgment, and such judgment will be treated as one calling for the application of section 3093, Kirby's Dig. Mr. Nelson was a proper party to this suit. Apperson & Co. v. Burgett et al., 33 Ark. 328; Hunt v. Weiner et al., 39 Ark. 70; Winter et al. v. Smith et al., 45 Ark. 549.

There is some difference in the authorities as to the effect of such provisions as section 3093, Kirby's Dig. (which is section 2 of the schedule of the Constitution), where there are several parties to the contract out of which the transaction grew. In Missouri and Massachusetts it has been held under somewhat similar provisions that the death of one party will not prevent testimony from the other parties being adduced against the administrator of the deceased. Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran, 77...