Denson v. Alabama Fuel & Iron Co., 7 Div. 735

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 73 So. 525,198 Ala. 383
• Parties: DENSON v. ALABAMA FUEL & IRON CO.
• Decision Date: 21 December 1916
• Docket Number: 7 Div. 735

73 So. 525

198 Ala. 383

DENSON
v.
ALABAMA FUEL & IRON CO.

7 Div. 735

Supreme Court of Alabama

December 21, 1916

Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.

Action by James W. Perkins, as administrator, against the Alabama Fuel & Iron Company, with intervention by W.A. Denson. From a judgment for defendant, the intervener appeals. Reversed and remanded. [73 So. 526]

W.A. Denson, of Birmingham, and Riddle & Ellis, of Columbiana, for appellant.

Percy, Benners & Burr, of Birmingham, for appellee.

THOMAS, J.

This cause was heard by the circuit court of Shelby county, and the trial resulted in a judgment for defendant. The facts are in dispute. It is not controverted, however, that on November 18, 1913, two sons of the original plaintiff, James W. Perkins, were killed in an explosion occurring in a coal mine operated by appellee, the Alabama Fuel & Iron Company, a body corporate; that on November 26, 1913, an attorney who was employed in the law office of intervener went to see said Perkins and wife, the sole distributees of intestates, and drew up and had signed by the Perkinses a written contract, in which intervener was employed to bring suit against appellee for said homicides. This agreement provided, in substance, for a remuneration to intervener in a sum "equal to one-half of the recovery there may be had in this case, either by settlement or compromise out of court, or in court, or by a verdict of a jury, or by the court without intervention of a jury," and, in case there should be no recovery, that nothing was to be paid for the said services and undertaking. The contract contained the further stipulation:

"It is further agreed that neither party shall settle or compromise this case either in or out of the court without the consent of the other; and each party agrees not to dismiss any suit that may be brought in any court to recover in this case unless by the joint consent of both parties to this instrument." [73 So. 527] Intervener insists that he had no knowledge or notice of such contract, and that his name was signed thereto by Ivey, who acted without previous authority from him; that on December 4, 1913, James W. Perkins came to his office and entered into contract with intervener, to bring the suits against defendant for causing the deaths of Perkins' two sons and by this contract intervener was to be paid a sum equal to one-half of whatever damages were recovered for said wrongful deaths of the deceased Perkinses. Intervener testified that the stipulation as to settlement, in the parol contract, was "that neither party to the agreement was to settle the cause of action without consulting the other," and that at no time was mentioned, by intervener or by Perkins, the said written agreement above adverted to. Thereafter, on the same day, letters of administration on said decedents' estates were granted to Perkins

Suit for said homicides was commenced in the circuit court of Shelby county, Ala., on December 6, 1913, being instituted by intervener as attorney for said administrator of the Perkins' estates. On December 5, 1913, the vice president and general manager of appellee corporation, and its attorney, called at Perkins' home and offered to settle these claims against the company, to which offer Perkins replied that he could not accept, because of the existence of a contract of employment between himself and intervener as his attorney in such matter, and on request Perkins produced said written contract and exhibited it to defendant's agents. Perkins was then requested by said officers or agents of defendant to call at the office of said company's attorney, in Birmingham, at a designated date thereafter, which Perkins promised to do. On December 8, 1913, when next in Birmingham, Perkins called on his attorney (intervener), stated the offer of compromise so made by the company to him, and indicated that he wished to accept. Intervener did not expressly refuse his assent to this acceptance on the part of the administrator for the estates of his intestates and plaintiff in the suit, but informed the administrator that he must not be understood as in any way waiving his lien as the attorney bringing the suit, secured to him by section 3011 of the Code of 1907. Thereafter Perkins went immediately to the office of the defendant company's attorney, accepted the compromise so offered as such administrator, was paid the sum agreed upon, and executed a full release and discharge of the defendant for such personal injuries.

While Perkins was in appellee's office, and before this settlement was concluded, a phone conversation ensued between intervener and the company's attorney having in hand the matter of the adjustment and settlement of the Perkins claim, the substance of which conversation is a matter of dispute. Intervener testified that he told this company's attorney that the suit for the death of Perkins had been brought by him as such attorney for the administrator in the circuit court of Shelby county, and that the suit was then pending, and that, if settlement was made with the administrator, witness would rely upon his rights and lien given by the statute for the collection of his fee in the case. This attorney, who acted for the company in the matter, denied that such conversation as related by the intervener took place, but stated that, in the conversation so had by him over the phone with intervener, no mention of the pendency of any suit in the Perkins case was made, and that said phone conversation related to another claim. This company's attorney further stated that he sent to the Jefferson county courthouse to ascertain if letters of administration had been granted on the Perkins estates, and, if so, whether suits had been brought for the homicides, and that he also phoned to Shelby county to make inquiry to the same effect; that before he had reply from Shelby county a message from intervener as to the Perkins claims was delivered to him through one Davidson, it being to the effect that defendant might settle direct with Perkins, and that intervener would "take care of his part."

This acquiescence in the settlement is denied by intervener, who says that he phoned to the company's attorney to put him on notice that intervener would rest on his rights as attorney under the Alabama statute. The testimony of the defendant's vice president and general manager was to the effect that he desired to settle direct with the deceased miners' father and mother, and that he did not want any damage suit lawyer to get any of the company's money. This conflicting testimony presented an issue of fact for the determination of a jury (Amerson v. Corona Coal Co., 69 So. 601; Tobler v. Pioneer Co., 166 Ala. 517, 52 So. 86)--the existence vel non of the lien, and the fact vel non of its waiver (Harton v. Amason, 71 So. 180).

The attorney bringing the original suits for said Perkins, as administrator, asserted by appropriate petition his lien for compensation claimed on the "suit" under section 3011 of the Code of 1907. Defendant's demurrer to the petition for intervention being overruled, defendant pleaded accord and satisfaction, founded on the settlement made by defendant with said plaintiff, Perkins, as administrator. Intervener's demurrer to such plea was overruled. The cause was tried, and the trial resulted in a verdict for the defendant. Motion for a new trial was made, and was overruled. On the trial many exceptions were reserved, and the rulings on which they were founded are now assigned as errors. Under our view of the real question presented by the appeal, it is not necessary to pass on all exceptions so reserved to rulings challenged as error.

Intervener contends that by his employment [73 So. 528] as attorney, and the bringing of the "suit" pursuant thereto, he acquired a lien on the suit, that could not be compromised by the parties, and that, until this lien was satisfied, he had the same right and power to direct and continue said suit, to the end of the enforcement of his lien as attorney, for the amount so due him; that is to say, intervener claims that the compromise, without his consent, and without the satisfaction of his attorney's lien, had not the effect to discharge or destroy that lien, and that as such attorney of record bringing the suit he may prosecute it to final judgment, for the ascertainment of the amount of his lien, and for the satisfaction thereof, as though no such compromise had ever been made between the parties to the suit. In Western Railway Co. v. Foshee, 183 Ala. 182, 62 So. 500, there was pointed out the procedure to determine the respective rights of the parties and of the attorney in such a case--the method pursued in the instant case by petitioning attorney. This is the rule of procedure declared for such case in New York, Georgia, and Tennessee. 6 Mayf. Dig. 63; Forstman v. Schulting, 35 Hun (N.Y.) 504; Lee v. Vacuum Oil Co., 126 N.Y. 579, 27 N.E. 1018; Poole v. Belcha, 131 N.Y. 200, 30 N.E. 53; Sidoway v. Jones, 125 Tenn. 322, 143 S.W. 893; Johnson v. McCurry, 102 Ga. 471, 31 S.E. 88; Little v. Sexton, 89 Ga. 411, 15 S.E. 490; Railroad v. Wells, 104 Tenn. 707, 54 S.W. 1041. The New York court holds that the attorney may proceed with the prosecution of the case without first obtaining leave to do so from the court. The exact form of the contract of employment of intervener by plaintiff as such administrator, as well as the question of its validity, is important in determining whether there existed the relation of attorney and client between said parties on December 8, 1913--the date on which the said administrator settled his claim with the defendant. If the contract of employment did not exist, or if, as entered into, it was a nullity, then intervener had no lien upon which to base his petition for intervention in the original suit.

The question, therefore, is the...