Clark v. Midwest Bakeries & Macaroni Mfg. Co.
| Decision Date | 07 April 1947 |
| Citation | 201 S.W.2d 423,240 Mo.App. 18 |
| Parties | John R. Clark, Appellant, v. Midwest Bakeries and Macaroni Manufacturing Company, a corporation, d/b/a Roma Baking Company and Roma Bakery and Casualty Reciprocal Exchange, a corporation, Respondents |
| Court | Kansas Court of Appeals |
Delivered
Appeal from Circuit Court of Jackson County; Hon. Emory H. Wright Judge.
Affirmed.
James B. Nourse , and Ted Houx, Jr., for appellant.
Plaintiff's evidence clearly established his right to have his attorney's lien enforced against both defendants. He had taken every step which was necessary under the law in order to perfect this lien. He is entitled to a judgment against both defendants in an amount equal to one-third that received by his client in compromise of the latter's claim for injuries. Lowry v. Mohn, (Mo. Sup.) 195 S.W.2d 652; Robertson v. Wall, (Mo. App.) 195 S.W.2d 894; Evans v. York, (Mo. App.) 195 S.W.2d 902; Sec 13338, R. S. Mo., 1939; Brookshire v. Metropolitan Life Ins. Co., (Mo. App.) 56 S.W.2d 817; Gerritzen v Louisville & N. R. R. Co., (Mo. App.) 115 S.W.2d 44; Renfro v. Nixon, (S. C. of Idaho) 45 P.2d 595; Secs. 3733, 13337, R. S. Mo., 1939; Wilson & Co. v. Ins. Co., (Mo. Sup.) 254 S.W. 266; Cunningham v. Kinnerk, (Mo. App.) 74 S.W.2d 1107; Abernathy v. Hampe, (Mo. App.) 53 S.W.2d 1090; 34 C. J., Sec. 1310, pp. 899, 900; Bushman v. Barlow, (Mo. App.) 15 S.W.2d 329; Autenreith v. Bartley, (Mo. App.) 176 S.W.2d 546; Soars v. Soars-Lovelace, Inc., (Mo. Sup.) 142 S.W.2d 866; Morse v. Potosi Tie Co., (Mo. Sup.) 130 S.W.2d 477; Kelly v. Howard, (Mo. App.) 123 S.W.2d 584; Sec. 3711, R. S. Mo., 1939; Dahlberg v. Fisse, (Mo. Sup.) 40 S.W.2d 606; Heagerty v. Hawkins, (Mo. Sup.) 173 S.W.2d 923; State ex rel. v. Smith, (Mo. App.) 134 S.W.2d 1061; Sec. 847.140 (c), New Civil Code (Laws, 1943, p. 353), Sec. 140; Axson v. Thompson, (Mo. App.) 197 S.W.2d 326.
James B. Breckenridge, Jr., Richard H. Beeson and David P. Dabbs, for respondents.
(1) The Court properly directed a verdict for defendants, because: Plaintiff's petition is based on a settlement of a supposed cause of action of Raymond Vaughn against his employer, Midwest Baking & Macaroni Manufacturing Company, under the common law, for negligence. He tried the case on said theory and is bound by that theory here. Huss v. Heydt Bakery Co., 210 Mo. 44, 108 S.W. 63 (5); City of St. Louis v. Wright, 210 Mo. 491, 109 S.W. 6; Taylor & Sons Brick Co. v. K. C. So. Ry. Co., 213 Mo. 715, 112 S.W. 59. (2) The Missouri Workmen's Compensation Law (Ch. 29, R. S. Mo., 1939) provides exclusive rights and remedies for employees for injuries arising under said law. Sec. 3691, R. S. 1939; General Motors Corp. v. Holler, 150 F.2d 297. (3) Likewise, the method of establishing a lien for attorneys' fees against the compensation of an injured employee is exclusive. Sec. 3711, R. S. Mo., 1939. The Circuit Court of Jackson County had no jurisdiction to enforce a lien for attorneys' fees against compensation of an injured employee. Secs. 13337 and 13338, R. S. Mo., 1939, providing for attorneys' liens on causes of action cognizable in courts of general jurisdiction, are not applicable to liens for attorneys' fees under the Workmen's Compensation Law, because said statutes are not a part of the Compensation Law. The Compensation Commission has exclusive jurisdiction of all rights provided by the Compensation Law. See Secs. 3689, 3691 and 3711, Ch. 29, R. S., 1939; General Motors Corp. v. Holler, 150 F.2d 297; Aldridge v. Reavis, (Mo. App.) 88 S.W.2d 265; Yellow Cab Transit Co. v. Overcash, 133 F.2d 228 (2). (4) Any claim for lien that plaintiff ever had against the compensation settlement was fully heard and adjudicated against plaintiff on his application for allowance of said lien before the Workmen's Compensation Commission. Pfitzinger v. Shell Pipe Line Corp. 226 Mo.App. 861, 46 S.W.2d 955; General Motors Corp. v. Holler, 150 F.2d 297. (5) The employee, Raymond Vaughn, had no cause of action at common law. No common law cause of action of Raymond Vaughn against his employer has been settled. Hence, if he ever had such a cause of action, it still exists. Secs. 3691, 3723, R. S. Mo. 1939. (6) Casualty Reciprocal Exchange was not liable to Raymond Vaughn on any common law cause of action for negligence of his employer. Hence, plaintiff had no lien against it. And if plaintiff claims a lien on a common law cause of action of Raymond Vaughn against Midwest Bakery and Macaroni Manufacturing Company, he failed to perfect said lien by serving notice thereof on said defendant, as required by Secs. 13337 and 13338, R. S. Mo., 1939, on which plaintiff relies. Abbott v. United Rys. Co., 138 Mo.App. 530, 119 S.W. 964.
This is an action to enforce an attorney's lien. At the conclusion of the evidence the court sustained defendants' motion for a directed verdict, resulting in a verdict and judgment for the defendants. Plaintiff has appealed.
The facts show that on February 25, 1942, one Raymond Vaughn, an employee of the defendant, baking company, sometimes called the Roma Bakery, was seriously injured while at work in the bakery plant in Kansas City; that plaintiff is an attorney-at-law residing in that city; that shortly after Vaughn was injured the latter employed plaintiff to prosecute his claim against his employer under the Workmen's Compensation Act agreeing to pay him 33 1/3% of whatever was recovered; that defendant, Casualty Reciprocal Exchange, is the insurance carrier; that plaintiff rendered various legal and social services to the employee, including the procurement of the advancement of some of the weekly payments that were being made by the insurance carrier to the employee; that he also entered into negotiations with the insurance carrier relative to a settlement of the claim; that on May 7, 1942, plaintiff served notice on one Dye that he was claiming an attorney's lien; that Dye was an employee of the insurance carrier, whom plaintiff claims was also an agent of the employer; that plaintiff learned that two other attorneys were seeking employment from Vaughn; that Vaughn told plaintiff that the two other lawyers were "after him" and the former told the latter to pay no attention to them. However, these attorneys, without plaintiff's knowledge, filed a claim before the Workmen's Compensation Commission on July 7, 1942.
On August 6, 1942, plaintiff entered the military service of the government. He was discharged from the military service in March 1943, upon condition that he enter a defense plant, which he did, and continued working there for 20 months after his discharge.
When plaintiff entered the military service he asked his office associate to look after Vaughn's interests in his absence, but so far as the record shows the associate took no part in the matter, but the case was prosecuted before the Commission by the two attorneys mentioned above. A compromise settlement was reached and approved by the Commission on December 24, 1942. This settlement was in a lump sum award of $ 5745.19 -- $ 745.19 having been theretofore paid to the employee. The balance of the award ($ 5000) was paid to Vaughn by the insurance carrier. Plaintiff had no knowledge of any of the proceedings before the Compensation Commission and Vaughn never discharged him as his attorney.
On March 25, 1945, plaintiff, having returned to the practice of the law and learning of the award, notified the Workmen's Compensation Commission, by letter, that he was claiming a lien upon the award for his attorney's fee. The matter was duly heard by the Commission and, on June 7, 1945, the claim was denied on the ground that plaintiff had not filed his notice of lien with the Commission for more than two years after the award had been entered and paid. Plaintiff appealed from this adverse ruling and order of the Commission to the Circuit Court of Jackson County, but he later dismissed the appeal.
Plaintiff, in his petition, asks for an enforcement of a lien in the sum of $ 1666.66.
Plaintiff insists that the court erred in sustaining defendants' motion for a directed verdict, for the reason that plaintiff is entitled to a lien on the award under the provisions of section 13338 R. S. Mo. 1939. Sections 13337 and 13338 are our general attorney's lien statutes. Section 13337 provides for an attorney's lien upon his client's cause of action which attaches to the judgment in the attorney's favor and cannot be affected by any settlement between the parties before or after judgment. Section 13338 provides that an attorney may lawfully contract for a percentage of the proceeds of a claim arising ex contractu or ex delicto. It also provides for a notice to be served by the attorney upon the defendant, or the proposed defendant, of the agreement with the client and, when served, the agreement shall operate as a lien upon the claim, cause of action and upon the proceeds of any settlement thereof for such attorney's percentage thereof; that any defendant, or proposed defendant, who shall settle any such claim or cause of action without first procuring the written consent of the attorney shall be liable to such attorney for his lien upon the proceeds of such settlement in accordance with the contract existing between the attorney and his client.
The Workmen's Compensation Act also has a section dealing, among other things, with attorneys' fees and liens therefor. This is section 3711, and reads as follows:
...
To continue reading
Request your trial
-
State ex rel. Safety Roof. Sys. v. Crawford
...not only defines the rights of employers and employees, but those of third persons as well. Clark v. Midwest Bakeries & Macaroni Mfg. Co., 240 Mo.App. 18, 201 S.W.2d 423, 425[1] (Mo.App.1947). Thus, in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo.......