Commercial Union Ins. Co. v. Scott

• Decision Date: 25 October 1967
• Docket Number: No. 1,No. 43145,43145,1
• Citation: 116 Ga.App. 633,158 S.E.2d 295
• Parties: COMMERCIAL UNION INSURANCE COMPANY v. Guy B. SCOTT, Jr
• Court: Georgia Court of Appeals

Page 295

158 S.E.2d 295

116 Ga.App. 633

COMMERCIAL UNION INSURANCE COMPANY v. Guy B. SCOTT, Jr.

No. 43145.

Court of Appeals of Georgia, Division No. 1.

Oct. 25, 1967.

Rehearing Denied Nov. 14, 1967.

Syllabus by the Court

Under the evidence in this case the court erred in rendering judgment in favor of the plaintiff.

Guy B. Scott, Jr. brought an action, designated by the summons as a 'suit for money had and received, in the amount of $258.48,' against Commercial Union Insurance Co. in the Magistrate's Court of Clarke County. The case was tried by the court without a jury, resulting in a judgment in favor of the defendant. The plaintiff appealed from said judgment to the Superior Court of Clarke County.

In the nonjury de novo hearing, evidence was adduced substantially as follows: The plaintiff testified that he was an attorney at law and had represented Mr. Thomas M. Lowery in a personal injury action filed in the Superior Court of Clarke County against the City of Athens following the giving of the statutory notice; that, meanwhile, Mr. Lowery received workmen's compensation in the amount of $775.47 (sic) from his employer's insurance carrier, the defendant; that defendant's adjuster told him that defendant never gave the City of Athens any statutory notice of claim; that he had not discussed handling the case for the defendant insurer prior to representing Mr. Lowery; that his contract with Mr. Lowery provided that plaintiff was to receive one-third of any settlement or recovery; that he settled the case against the city for $3,750; that the city's insurance carrier remitted the settlement to plaintiff in two checks, one payable to Mr. Lowery and the defendant, in the amount of $775.45 (sic) (as appears from the copy of the check in evidence) and the other payable to plaintiff and Mr. and Mrs. Lowery, for the balance; that he deducted his one-third of the larger check and remitted the balance thereof to the Lowerys; that he sent the smaller ($775.45) check to the defendant, in care of its adjuster, along with a bill (plaintiff's Exhibit 1) for 'Attorney fees in connection with Thomas Lowery and Mrs. Thomas Lowery, claim No. L67517-20,' in the amount of $258.49; that the claim manager of the city's (defendant's?) insurer returned the bill to him, denying liability therefor; that his clients were the Lowerys; that he had never had any communication with the defendant before billing it for one-third of the amount of the check sent to it; that the basis of his claim is that he had collected the money and the defendant, which would not have recovered at all except for his efforts, had been unjustly enriched. The attorney for the insurance carrier of the City of Athens testified that his file contained the defendant's notice of its subrogation claim (as provided by Code Ann. § 114-403, as amended by Ga.L.1963, pp. 141, 145); that he had refused to make the settlement payable in any manner which might have circumvented defendant's lien; and that the $775.45 check was endorsed for deposit by defendant. The plaintiff verified that his client had not received any part of said check.

The court rendered judgment in favor of the plaintiff in the amount of $258.49, from which judgment defendant appeals.

Erwin, Birchmore & Epting, Denny C. Galis, Athens, for appellant.

Hudson & Stula, Jim Hudson, Guy B. Scott, Jr., Athens, for appellee.

FELTON, Chief Judge.

Although the plaintiff designated his action as one for 'money had and received,' testified that the basis of his action was unjust enrichment, and objected to the defendant's referring to the action as a 'suit for attorney fees,' admitting that he was never the attorney for the defendant, the evidence as a whole shows that the amount sought was, indeed, an attorney's fee. The plaintiff himself must have realized this, since he not only acknowledged the money as his attorney's fee several times in his testimony, but also specifically designated it as such in the bill he sent to the defendant. According to the plaintiff's own testimony, the portion of the $775.45 recovery he claimed (one-third) was that stipulated in his contract for attorney's fee with his client, Mr. Lowery.

'Ordinarily, the services of an attorney must be paid by the client who employs him. Hill v. Bush, 206 Ga. 543(1), 57 S.E.2d 670.' Builders Supply Co., Inc. v. Pilgrim, 115 Ga.App. 85, 89, 153 S.E.2d 657, 660. 'The relation of attorney and client is created by contract; and litigants who have not thus assumed liability for attorney's fees cannot generally be held liable therefor, although they have been benefited, directly or...