Curtis

• Decision Date: 02 April 1906
• Citation: Curtis, 94 S.W. 762, 118 Mo.App. 341 (Kan. App. 1906)
• Parties: MARY CURTIS, Respondent, THE METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

94 S.W. 762

118 Mo.App. 341

MARY CURTIS, Respondent, THE METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 2, 1906

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and Chas. A. Loomis for appellant.

(1) Parties may stipulate with reference to the disposition of cases at any stage of the proceeding, and also with reference to matters of practice and procedure, and the court will recognize and enforce such stipulation when legally made. Where parties to suit stipulate in writing for a valuable consideration that a new trial shall be granted and the cause dismissed, and the court judicially determines such stipulation was voluntarily entered into for a valuable consideration and was and is a valid and binding stipulation between the parties, it is the duty of the court to recognize and enforce such stipulation and to grant a new trial and dismiss the cause in accordance with such stipulation. Barber v. Berry, 4 Mo.App. 585; Blair v Bank, 8 Mo.App. 318; Alder v. Wagner, 47 Mo.App. 25; Freedman v. Hulberg, 89 Mo.App. 340; Goldsmith v. Candy Co., 85 Mo.App. 595; St Joseph v. Hax, 55 Mo.App. 293; State ex rel. v. Railway, 47 Mo.App. 212; Galbreath v. Rodgers, 30 Mo.App. 401; Galbreath v. Rodgers, 45 Mo.App. 324.

T. B. Buckner and Madden & Scholer for respondent.

(1) The first section of our attorney's lien law was taken from the New York statute where it was adopted in 1879 and the courts of that State had construed the law prior to its adoption here. Peri v. Railway, 152 N.Y. 521, 46 N.E. 849; Fischer-Hansen v. Railway, 173 N.Y. 492, 66 N.E. 395; Conklin v. Austin, Mo.App. 86 S.W. 911; Barry v. Railway, 84 N.Y.S. 831; Marvin v. Marvin, 19 N.Y.S. 371; Guliano v. Whitenack, 30 N.Y.S. 415; Caster v. Ferry Co., 98 N.Y. 660; In re Regan, 167 N.Y. 338, 60 N.E. 658; Serwer v. Sarasohn, 86 N.Y.S. 841.

OPINION

JOHNSON, J.

On February 19, 1904, a verdict of $ 1,000 was returned in favor of plaintiff in an action brought by her to recover damages for personal injuries. Motions for a new trial and in arrest of judgment were filed by defendant in due time, but were not determined by the trial court until October 22, 1904. They were then overruled and defendant appealed. At the hearing of the motions defendant offered in evidence an instrument in writing as follows:

"Mary Curtis, Plaintiff, v. Metropolitan Street Railway Company, Defendant.

AGREEMENT.

"I, Mary Curtis, plaintiff in the above-entitled cause, hereby agree that the motion for a new trial filed by the defendant in the above-entitled cause shall be sustained by the court and that the judgment heretofore rendered in said cause against the defendant and in favor of the plaintiff shall be set aside, and that the above cause shall be dismissed.

"MARY CURTIS,"

"Plaintiff."

Counsel for plaintiff admitted the signature of their client to this instrument, but complained that it had been obtained by means of fraudulent representations and practices of defendant, and in support of this assertion presented an affidavit made by plaintiff, in which she detailed the false and artful means which she claimed defendant employed to induce her consent to a settlement of her cause of action and a dismissal of her suit. Both parties appeared to be eager for a judicial investigation of these charges and the court permitted them to introduce evidence pro and con, from which the following facts appear.

Plaintiff, a young unmarried woman without property or means, on August 1, 1903, employed the law firm of Madden & Scholer of Kansas City to prosecute her claim for damages against defendant and entered into a written contract with said attorneys, under the terms of which she agreed "to pay said attorneys for their services an amount equal to fifty per cent of the amount recovered either by suit or compromise" and further agreed "not to compromise or dispose of said action in any way without the written consent of said attorneys." On August 28, service of a written notice of this contract was acknowledged by defendant's attorneys. In this notice defendant was advised of the terms of the contract and that plaintiff's attorneys claimed an interest in and "a lien upon said claim or cause of action of the plaintiff to the extent of said fifty per cent." In May, 1904, while the case was pending on the motions for a new trial and in arrest, plaintiff called upon Mr. Satterlee, defendant's assistant general manager, at his office, and entered into negotiations for a settlement of the case. An agreement was made by the terms of which plaintiff received a check for $ 200, which she shortly cashed, and in return signed and delivered to Mr. Satterlee the following instrument:

"In the Circuit Court of Jackson County, Missouri.

"Mary Curtis, Plaintiff, v. Metropolitan Street Railway Co., Defendant.

DISMISSAL.

"I hereby dismiss the above-entitled cause and personally authorize and direct my attorney at law to appear for me and have order of dismissal made of record, and the above court is requested and directed to dismiss said cause with or without the appearance of an attorney. And I hereby release all claims or judgments entered in my favor in the above-entitled cause.

MARY CURTIS."

"Plaintiff."

The attorneys of defendant after an inspection of this paper prepared the "agreement" for an order sustaining the motion for a new trial and sent it to plaintiff's home for her signature, so that at the hearing of the motions both instruments were extant, but that executed by plaintiff after the consummation of the settlement was relied upon by defendant to control the disposition of the case.

When plaintiff and Mr. Satterlee made the settlement, both knew they were acting without the knowledge and consent of plaintiff's attorneys and knew that the attorneys claimed a lien upon the judgment for their fees. Neither intended to, nor thought they could, entirely destroy the attorneys' lien, but both evidently were actuated by the thought that the amount of the attorneys' fees could be fixed by the parties to the suit without consultation with the attorneys. The supposition that controlled their action is clearly suggested in this testimony of Mr. Satterlee. "Q. Did you tell her in that conversation that you would pay the attorneys yourself? A. No, I did not. I said we would have to pay them fifty per cent of what we gave her. I told her we would have to pay it. "Q. And you thought it would be a pretty good settlement to make, to pay her $ 200 and pay them $ 100 on a $ 1,000 judgment, that is your idea? A. I thought it would not be a bad settlement, I would not pay any more to keep from going on appealing it. If we could settle $ 1,000.00 for $ 300, I didn't think it was a bad settlement." This was on cross-examination. On the redirect, he said: "Q. And the question of attorneys' fees, you told her you supposed you would have to pay the lawyers half? A. They had a lien: we had to pay them their proportion."

It is apparent from these admissions of defendant's managing officer that nothing more was intended by the parties than the satisfaction of plaintiff's own interest in the judgment by the payment made to her and that, as between them, the settlement of plaintiff's attorneys' fees was understood to devolve upon defendant.

In the order overruling the motions, the court made this finding of fact: "And the court, from the evidence introduced by plaintiff and defendant upon the hearing of said motion for a new trial, finds that defendant was not guilty of any fraud, misrepresentation, concealment or deceit in procuring or inducing plaintiff to sign, execute or deliver the said release, voucher and stipulation to the defendant." As we understand this finding, it is restricted in its scope to the relation between the parties litigant and not to their conduct towards the attorneys of plaintiff, and it has our approval. The learned trial judge, who heard the testimony and observed the parties, was in a better position than we are to weigh the evidence and, in such situation, we do not interfere with findings of fact made by the trial judge except when it is clearly apparent they are opposed to the great weight of the evidence. No such hostility is found in the record before us, but, to the contrary, we are satisfied from the facts in proof that plaintiff was not misled or deceived by defendant. She knew the case in all likelihood would be appealed and its final determination delayed, and was influenced to accept the settlement offered by her own necessities and her knowledge of the uncertainties of litigation rather than by distrust of her lawyers. If she entertained such distrust, it was not engendered by defendant. It necessarily follows that the interest of plaintiff in the judgment was released and satisfied in the settlement made and the attorneys of plaintiff are the only parties whose right to insist upon the preservation of the judgment will receive any consideration.

It will be observed that in the written agreements signed by plaintiff she assumed the right and attempted to dispose of the entire cause of action then merged in the judgment. It is argued that as the attorneys of plaintiff were not parties to the suit, any lien they might have upon their client's cause of action could not be used by them to deprive her of her right to compromise her case at any stage of the proceeding and to dispose of it in the manner stipulated with her adversary, and that therefore the trial court abused its discretion in refusing to give effect to the settlement which required that the judgment be set aside and the suit dismissed. It may, with reason, be said that the action of the court in...