Denson v. Caddell

• Decision Date: 29 November 1917
• Docket Number: 6 Div. 637
• Citation: 77 So. 720,201 Ala. 194
• Parties: DENSON v. CADDELL.
• Court: Alabama Supreme Court

77 So. 720

201 Ala. 194

DENSON v. CADDELL.

6 Div. 637

Supreme Court of Alabama

November 29, 1917

Rehearing Denied Jan. 24, 1918

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by Clyde Douglas Caddell by next friend, against W.A. Denson in assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449 Acts 1911. Affirmed.

The assignments of error referred to are as follows:

(8) The court erred in charging the jury orally as follows If this original contract remained not changed or modified or altered between these parties, the Clanton attorneys were not brought into the case with the knowledge and consent, and their services were not accepted by plaintiff, or for him by his mother, then plaintiff is entitled to recover the difference between one-half and one-third of the amount of the judgment obtained in that court, to wit, $1,500, the difference between one-half and one-third.

(9) In giving to the jury at the request of plaintiff the following charge: If you believe from the evidence that the only contract between plaintiff and defendant was the written contract introduced in evidence, then I charge you that plaintiff was entitled to recover.

(10) The following charge for plaintiff: If you believe from the evidence that Mr. Denson employed Middleton & Reynolds and agreed to pay them out of his part, under the contract, and Middleton & Reynolds accepted this employment, then I charge you that plaintiff would not, in any way, be responsible for any additional compensation for Middleton & Reynolds.

(11) In refusing the following charges requested by defendant: (1) The affirmative charge to find for defendant. (2) The court charges the jury that if the jury believe the evidence in this case, defendant was entitled to 50 per cent. of the amount collected for his services in the case of Clyde Caddell v. L. & N.R.R. Co.

W.A. Denson, of Birmingham, for appellant.

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

McCLELLAN J.

This action was brought by the appellee, against the appellant. From a judgment for the plaintiff for $386.67, the defendant appeals. The complaint consists of three common counts, and declares on an account stated, an open account, and for money had and received by the defendant for the use of the plaintiff. To these counts a demurrer was interposed on this single ground: "The allegation of each and every one of said counts is vague, uncertain, and indefinite." This was but a general ground of demurrer, not specific, as the statute (Code, § 5340) requires, and the court did not err in overruling it. Ala. Land Co. v. Slaton, 120 Ala. 259, 24 So. 720.

Between the plaintiff and defendant, respectively, the relation of client and attorney had existed. The substance of plaintiff's claim against the attorney was that the defendant was liable to the plaintiff for the difference between his fee under their contract and the amount paid, under a consent judgment, in plaintiff's action, for personal injuries, against the Louisville & Nashville Railroad Company. Originally the plaintiff's suit against the railroad company was instituted in Etowah county, Ala., but subsequently this suit was dismissed and another brought, for the same injury, in Chilton county, Ala. The suit brought in Chilton county progressed to a consent judgment against the defendant for $1,500 in favor of the plaintiff. The plaintiff in the present action introduced in evidence an instrument in writing, the presently pertinent part of which reads:

"The State of Alabama, Jefferson County.

"This agreement witnesseth: W.A. Denson, lawyer, undertakes to prosecute a suit for Clyde Douglas Caddell, who is a minor and who sues by his next friend Miss Lula Caddell against Louisville & Nashville Railroad Company, a body corporate for personal injuries to Clyde D. Caddell the cause of action having occurred on the 3d day of December, 1912. For said services and undertaking the said Miss Lula Caddell agrees to pay said W.A. Denson an amount equal to one-half of the recovery that may be had in the 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. If trial of cause is had, but in the event of a compromise of the cause without a trial then the said W.A. Denson shall be paid one-third of the amount of such compromise as his fee in the cause."

With the consent of those nearly related to the injured minor, and doubtless, the minor himself, the original suit, brought in the performance of the services contemplated by the contract, in Etowah county, was dismissed, and a suit for the same cause was later instituted in Chilton county. Reference will be later made to the quoted terms of this paper.

During the cross-examination, by the defendant in person, of Mrs. Frances Caddell, the mother of the plaintiff, the witness stated that some people had objected to the employment of defendant as the attorney in the suit to be brought for the injuries suffered by young Caddell. And being asked by the defendant what were the grounds of objection, the witness, after assurance from the defendant that he desired to know, stated the objection, whereupon the defendant asked the witness: "Who told you that? *** I want the names of the parties." The court sustained the plaintiff's objection to these inquiries. Subsequently, during the cross-examination of Mrs. Caddell, the defendant sought to have the witness give the names of persons whose rights she knew, or others had said, he had not observed, or to state whether these objectors had told her that they knew he had so failed to observe the rights of others. The court also sustained objections to such questions. In view of the issues involved in the case, it is manifest that these matters were entirely immaterial, wholly irrelevant. They came out, not on the examination by the plaintiff, but on the cross-examination. Being immaterial and irrelevant, the subject or subjects of these questions (noted in assignments of error 4 to 7, inclusive) were not available as the basis or bases for impeaching testimony. It appears that defendant was engaged as attorney at the instance of the witness, the mother of the injured minor, notwithstanding the objections to which she referred; and the contract of employment subsequently made with defendant evinced a repudiation of the objections detailed by Mrs. Caddell.

The remaining assignments of error bring into question a part of the oral charge of the court, two special instructions given the jury at the instance of the plaintiff, and two requests for special instructions that were refused to the defendant one of which was the general affirmative charge for the defendant. The report of the appeal will contain the matters complained of in assignments 8 to 12, inclusive. A review of questions made by these subjects of complaint requires consideration of the contract, a part of which is quoted above in this opinion. In the brief for appellee it is stated that this contract was constructed on a blank form, and that the expression beginning with the words, "If trial of cause is had," and ending with the above quotation from the instrument, was set in,...