Curtis v. Metropolitan St. Ry. Co.

• Decision Date: 02 April 1906
• Citation: 94 S.W. 762,118 Mo. App. 341
• Parties: CURTIS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

94 S.W. 762

118 Mo. App. 341

CURTIS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

Rehearing Denied May 7, 1906.

1. APPEAL—REVIEW—FINDINGS BY COURT— CONFLICTING EVIDENCE.

Findings of fact by the court will not be disturbed on appeal, except when clearly apparent that they are opposed to the great weight of the evidence.

2. ATTORNEY AND CLIENT—ATTORNEY'S LIEN —SETTLEMENT BETWEEN PARTIES—REMEDIES OF ATTORNEY.

Sess. Acts 1901, p. 46, authorizes an attorney to contract with his client for a certain portion of the proceeds of the cause of action, and provides that after service on defendant of notice of such an agreement, the attorney shall have a lien on the cause of action which cannot be affected by any settlement between the parties. Held, that where the parties make a settlement without the attorney's consent, and the proceeds are paid over to the client, the attorney may follow the proceeds into the hands of his client or any other person who may have received them, or may recover his share from the defendant in a separate proceeding, or if the cause of action has been merged into a judgment, the attorney may enforce his lien against the judgment itself.

3. SAME.

A provision in a contract between the attorney and client that the client should not compromise or dispose of the action in any way without the attorney's consent, if enforceable, was of no avail to the attorney where no mention was made of it in the written notice served on defendant.

4. SAME—AMOUNT OF LIEN.

Where plaintiff's attorney under his contract with plaintiff, was entitled to 50 per cent. of the recovery, and after judgment and pending motions for a new trial and in arrest of judgment, defendant and plaintiff effected a settlement for a less sum than the judgment, the amount of the attorney's lien was 50 per cent. of the sum for which settlement was made, and not 50 per cent. of the judgment.

5. SAME—SETTLEMENT BETWEEN PARTIES.

Sess. Acts 1901, p. 46, authorizes an attorney to contract with his client for a certain portion of the proceeds of the cause of action, and provides that after service on defendant of notice of such an agreement, the attorney shall have a lien on the cause of action which cannot be affected by any settlement between the parties. Held, that a settlement between an attorney and client made to defraud the attorney out of any part of his lien, will be disregarded, but the statute does not destroy the client's right to settle his cause without the attorney's interference.

6. SAME—ENFORCEMENT OF LIEN.

Where after judgment for plaintiff and pending motions for a new trial and in arrest of judgment, plaintiff and defendant made a settlement for a less sum than the judgment, and plaintiff's attorney had properly protected his lien under the statute, it was proper for the trial court to overrule the motions for a new trial and in arrest, so as to preserve the attorney's security, and the attorney was entitled to an execution for the enforcement of the judgment in an amount sufficient to satisfy his lien.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Mary Curtis against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John H. Lucas and Charles A. Loomis, for appellant. T. B. Buckner and Madden & Scholer, for respondent.

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, vs. 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 50 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 28th 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 50 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, vs. 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 50 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 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 lawyer's 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...