Dodd v. Newton, s. 45564

• Decision Date: 30 October 1970
• Docket Number: 45565,No. 3,Nos. 45564,s. 45564,3
• Citation: 122 Ga.App. 720,178 S.E.2d 567
• Parties: Mary Ruth L. DODD v. W. W. NEWTON (two cases)
• Court: Georgia Court of Appeals

Page 567

178 S.E.2d 567

122 Ga.App. 720

Mary Ruth L. DODD v. W. W. NEWTON (two cases).

Nos. 45564, 45565.

Court of Appeals of Georgia, Division No. 3.

Oct. 30, 1970.

Syllabus by the Court

1. The plaintiff's motion to dismiss the appeals is denied. The notice of appeal in both cases being from the final judgment entered in the case, the enumeration of error as to the overruling of the defendant's motion for new trial is reviewable under Tiller v. State, 224 Ga. 645, 164 S.E.2d 137.

2. After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict. Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146; Southern R. Co. v. Brock, 132 Ga. 858, 862, 64 S.E. 1083; Stapleton v. Amerson, 96 Ga.App. 471(5), 100 S.E.2d 628; Young Men's Christian Ass'n v. Bailey, 112 Ga.App. 684, 690, 146 S.E.2d 324; Boatright v. Rich's, Inc., 121 Ga.App. 121(1), 173 S.E.2d 232.

3. Based upon the authority of Black v. Aultman, 120 Ga.App. 826(1), 172 S.E.2d 336 (the writer dissenting), the defendant's enumerations of error on various portions of the trial court's charge are without merit as no objection was made before verdict. While the defendant did initially object to the court's charge on the definition of quantum meruit, the jury was recalled and given another definition. No objection was made to the substituted charge.

4. The court did not err in denying the motions for judgment notwithstanding the verdict and new trial as the evidence was sufficient to support the verdict.

5. Even though a lawsuit for attorney's fees is bottomed upon quantum meruit, it may still be affected by the contingency of the recovery. The court did not err in allowing in evidence testimony as to attorney's fees usually charged and received for similar services by other persons of the same profession in the same vicinity and practicing in the same court even though this testimony concerned the contingent fee schedule of the local bar.

These cases involve two suits to collect attorney's fees based upon quantum meruit which were consolidated for trial. The cases proceeded to trial resulting in verdicts in stated amounts. Motions for new trial and for judgment notwithstanding the verdict, both as amended, were duly filed, heard and overruled. The appeal is from the final judgments with errors enumerated on the denial of these motions.

A. S. Dodd, Jr., Statesboro, for appellant.

Brannen, Clerk & Hester, Perry Brannen, Savannah, for appellee.

EVANS, Judge.

1-4. Headnotes 1 through 4 require no furtherelaboration.

5. Examination of the testimony here objected to as being inadmissible shows the following:

The husband of Mrs. Ruth L. Dodd, who was a practicing attorney, was on cross examination by the plaintiff, and, over objection that it was not germane, allowed to testify as to contingent fees in Statesboro, Georgia, as follows:

'* * * settlement prior to suit a contigent fee would be twenty five (25) percent, settlement after suit filed, thirty three and one-third (33 1/3).' (T. pp. 23, 29, 30.)

The defendant's attorney, while cross-examining Ward Newton, the plaintiff, brought out the same testimony on a larger scale wherein it applied to the entire State of Georgia, without objection, said Newton testifying as follows:

'Not only that, I have never, I have never taken a suit wherein damages were produced that I was not paid one third and if I associated with counsel, some other counsel, we divided that one-third. So I am asking to be paid the exact amount I am paid every day, have been paid every day and every other attorney in the State, and you know it, is also paid, unless he makes some peculiar arrangement.' (T. p. 98.)

This court will take judicial notice that Statesboro is a city in the State of Georgia. See Owens v. Rutherford, 200 Ga. 143, 149, 36 S.E.2d 390; and that Statesboro was incorporated in 1866 and the charter has been amended various times since. See Ga.L.1889, 1902, 1912, 1947, and others.

The appellate courts of Georgia have held numerous times that where testimony is objected to and admitted and the same testimony is elicited on cross examination, the error, if any, is thereby cured. American Family Life Ins. Co. v. Glenn, 109 Ga.App. 122(2), 135 S.E.2d 442; Moore v. State, 193 Ga. 877(2), 20 S.E.2d 403; Walthour v. State, 191 Ga. 613(1a, b), 13 S.E.2d 659.

Further, even though this lawsuit is bottomed on quantum meruit, it is still affected by the contingency of the recovery. It is axiomatic that the value of an attorney's services for losing a case are quite different from the value of those services in winning a case, and no one knows this better than the client who must pay the attorney. Thus, in my opinion, admission of the evidence as to the contingent contract, while not governing and controlling the fee to be awarded, was still proper subject matter for consideration by the jury. Here we have a case where there was a recovery; and the plaintiff, an attorney, sets up his claim for the reasonable worth of his services in helping to effect that recovery. Black's Law Dictionary defines quantum meruit as:

'As much as he deserved; in pleading, the common count in an action for assumpsit for work and labor founded on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as he reasonably deserved to have for his labor.'

Can it be doubted that a laborer is entitled to more for his services for a successful project than for an unsuccessful one? Of course, other elements may be properly considered by the jury also, including the time, work, and inconvenience suffered by the attorney. Suppose, for instance, this case had been lost, and this suit had been brought for attorneys fees for quantum meruit-can it be doubted that the defendant would have come forth with his contention that the services were not very valuable in that they did not accomplish the desired result?

Counsel for appellant cites two cases from other jurisdiction, but they do not support the premise. Dumas v. King, 8 Cir., 157 F.2d 463(14) holds that the Fair Labor Standards Act specifically provides for 'reasonable attorney's fees' and therefore does not contemplate a speculative or contingent fee. However, in that case $250 was awarded as attorney's fee for recovering $629.72 for overtime compensation, and an equal amount for liquidated damages and an additional $250 for services necessary in connection with the employer's appeal. Thus $500 attorney fees were awarded as against a recovery of $1259.44 principal, which is cosiderably more than 33 1/3%. No ruling whatever was made as to the admissibility of evidence as to the contingent fee contract. In the other case, In re McCrory Stores Corporation and Cooper v. Irving Trust Co., 2 Cir., 91 F.2d 947(3, 4), no ruling was made as to the admissibility of evidence as to contingent fee contracts, and it is readily apparent...