Byrne v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 19 February 1893
• Docket Number: 3,214.
• Citation: 55 F. 44
• Court: U.S. District Court — Western District of Tennessee
• Parties: BYRNE v. KANSAS CITY, FT. S. & M. R. CO.

55 F. 44

BYRNE v. KANSAS CITY, FT. S. & M. R. CO.

No. 3,214.

United States Circuit Court, W.D. Tennessee.

February 19, 1893

Adams &amp Trimble, for the demurrer.

Francis J. Byrne, opposed.

HAMMOND J.

This is a suit for personal injuries. There is a plea of champerty under our Tennessee statute, and a demurrer to it. The plaintiff is an attorney at law, and the averment is that he has entered into a contract with the sole distributee or heir at law of the intestate for one half of the recovery as his fee, contrary to the statute in that behalf. Mill. & V. Code Tenn. Secs. 2445-2458.

It is insisted that the case does not fall within the statute since the plaintiff cannot make a champertous agreement with himself for the prosecution of the suit; and since his recovery will become assets in his hands, to be strictly accounted for in the court of administration, where he can be allowed only his commissions; and, moreover, whatever may be paid to him by the distributee upon whatever contract is necessarily a payment taking effect after the recovery and after a distribution by the court of administration.

Plausible as this may seem, I do not think the statutes against champerty can be so evaded. It is like our pension laws which forbid the attorney to take more than a fee of $10, but, the money being in fact all paid to the pensioner, and his absolute dominion thus established, so that he might do what he pleased with his own, if he choose voluntarily to recompense his attorney with a larger sum, this would not be against the statute, it has been often contended. But the courts have not taken that view, and men have gone to the penitentiary for reliance upon it.

But there is another answer to this contention. Our statute giving damages for death by the negligence of another gives the recovery to the widow or next of kin in their own right, and they may sue for it in their own names. Mill. & V. Code, Secs. 3130-3134. It is true that the administrator may also sue, but the recovery is not assets in his hands, either for creditors or distributees, except, possibly, in the very barest technical sense. Id. Secs. 3130, 3133. His relation to the ownership of the fund is more like that of a trustee for the beneficiaries, or of a statutory agent, than that of administrator, which he is merely in name. A little thought upon this distinction brings out quite clearly the unsubstantial character of the suggestion that he cannot bargain champertously with himself as plaintiff. Besides, a court of equity would quickly get behind this technicality in a court of law, and it is to be observed especially that our Tennessee statute against champertous agreements invests the courts of law with the powers of a court of equity for the purpose of discovering and punishing the offense. It is, in substance and in fact, as we have the question here, a contract by the attorney with the owner of the right of action to share the fund recovered, and is to all intents and purposes champertous, according to the statute.

But the statute does not and cannot in its entirety apply to the federal courts. It is not within the competency of the legislature of Tennessee to direct when the federal courts shall dismiss a suit pending there, either as a penalty for a statutory offense or otherwise. I state this proposition broadly, and think it will find a ready assent with every one; but it is not the broader proposition of the plaintiff that this statute has no application in the federal courts, and that they have no law of champerty. The supreme court has never decided that, I think. For clearly it is within the authority of the states to regulate this subject, and, so far as their legislation can operate, it will be not only effectual in the federal courts, but they will do all that should be done to enforce it, whatever they may think or have expressed as to the policy of such laws. In one sense, the federal courts have no law of larceny as the state courts have it, and yet in some ways they give effect to the state laws against it. No convicted thief would be allowed to practice law in the federal courts. They would declare void any thief's claim of ownership of property he had stolen where the question arose within their jurisdiction. They would restore the stolen goods whenever the proper process was available in their jurisdiction. And if the state statutes to suppress larceny should declare some statutory rule of property, or should disfranchise from civil or political rights the convicted thief, or even if they should invent some new legal or equitable remedy of a civil nature, hitherto unknown, for the suppression of the trespass on property rights involved in the commission of the offense, the federal courts would give effect to such statutory declarations, and use the new remedies, if possible to adjust them to their jurisdiction and procedure. In the same way they will give effect to these laws against champerty, and this necessitates a scrutiny into their character, in order to determine just what relation they may have to the federal jurisdiction, which relation, I find, necessarily perhaps, somewhat complicated. But I have no doubt the plaintiff is mistaken in saying broadly that they are not binding on us, or that the federal courts discountenance laws against champerty, and do not recognize them.

At common law, or under old English statutes that ordinarily pass for common law with us, there were the kindred offenses of common barratry, maintenance, and champerty, which were punished by disbarring or 'disabling' the offender if an attorney, by fine and imprisonment, transportation, forfeiture of money, treble damages, etc. 4 Bl.Comm. 134. The offenses there described did not perhaps include that which has been set up...