Dougherty v. Hughes

• Decision Date: 23 November 1896
• Citation: 165 Ill. 384,46 N.E. 229
• Parties: DOUGHERTY et al. v. HUGHES et al.
• Court: Illinois Supreme Court

165 Ill. 384

46 N.E. 229

DOUGHERTY et al.

v.HUGHES et al.

Supreme Court of Illinois.

Nov. 23, 1896.

Appeal from appellate court, First district.

Bill in equity by William E. Hughes and another against Martin Dougherty, Jr., and others. Cross bill filed by Martin Dougherty, Jr. Both bills dismissed by superior court. On appeal to appellate court (62 Ill. App. 464), the decree dismissing cross bill was affirmed, but decree dismissing original bill was reversed and remanded, with instructions to enter decree for complainants for $1,000, whereupon defendants and plaintiff in cross bill appealed to supreme court. Judgment of appellate court reversed, and decree of superior court dismissing both bills affirmed.E. J. Whitehead, McCracken & Cross, and Defrees, Brace & Ritter, for appellants.

Wm. E. Hughes and C. J. Wood, pro se.

In July, 1892, Martin Dougherty, Jr., a minor, received an injury through, as is alleged, the negligence of the Chicago, Milwaukee & St. Paul Railway Company. The People's Casualty Claim Adjustment Company, a corporation in Chicago, was then engaged in collecting claims of that character; and the company applied to Martin Dougherty, Sr., the father of the minor, for the collection of the claim for damages against the railroad company. The interview between the parties resulted in the execution of a power of attorney as follows by Martin and Nellie Dougherty, parents of the minor: ‘In consideration of one dollar to us paid and of service rendered and to be rendered by the People's Casualty Claim Adjustment Company in the matters herein mentioned, we, Martin and Nellie Dougherty, for our minor son, Martin Edward Dougherty, of 154 Edgar street, Chicago, Illinois, by these presents do make, constitute, and appoint the said company our attorneys, hereby waiving our power to revoke this instrument, for us, and in our name, place, and stead, to settle, adjust, arrange, and collect the claim we have against the Chicago, Milwaukee & St. Paul Railroad Company by reason of the injury received by our son, Martin Edward Dougherty, at Edgar street and the railroad tracks, on or about the 20th of May, 1892. Authority is hereby given to sue, in which case we will pay all court costs. In the event our claim is settled without suit, we hereby promise to pay said company for its services one-fourth of the amount received, and, in case of suit, one-third of whatever amount is collected. We further promise to accept our share as above in full settlement of our claim, and that we will refer all propositions of settlement to said company, given and granting to our said attorney full power.’After the execution of the power of attorney the casualty company employed the complainants, Hughes and Wood, to institute a suit against the railroad. Suit was commenced in the circuit court of Kane where a judgment was recovered for 10,000. The master in chancery found that: ‘(6) Up to this point, complainants were not employed by the minor or his next friend, or the parents of the minor, but acted solely for the casualty company, under their contracts with them. The company paid Hughes' expenses at the trial, and also $240 attorney's fees, which sums were accepted by him in full payment for services and expenses. Cyrus J. Wood was acting for the company, upon the basis of receiving ten per cent. of the amount received by the company, in cases where he was attorney, and said minor's case was commenced under that arrangement by said Wood, and he acted under said arrangement to the time of entry of judgment in the circuit court.’ The railroad company appealed to the appellate court, and the appellate court affirmed the judgment of the circuit court. The railroad company then appealed to this court. In this court complainants procured an order appointing Adolph Moses guardian ad litem for the minor, and the guardian ad litem employed complainant William E. Hughes to attend to the case here; but before a hearing was had the case was settled, the railroad company paying Martin Dougherty, Sr., who had been appointed guardian of the minor, $9,500.

CRAIG, J. (after stating the facts).

A motion to dismiss the appeal for the want of jurisdiction was reserved until the hearing. As has been seen, the judgment appealed from was $1,000; and under the ruling in Baber v. Railroad Co., 93 Ill. 342, and Umlauf v.Umlauf, 103 Ill. 651, the amount involved was sufficient, under the statute, to authorize an appeal to this court. The motion to dismiss the appeal will be overruled. It will be observed that on the hearing the superior court of Cook county dismissed the original and cross bills for want of equity. The appellate court affirmed the decree of the superior court in dismissing the cross bill, but the decree dismissing the original bill was reversed, and the cause remanded, with instructions to enter a decree in favor of William E. Hughes and Cyrus J. Wood, complainants therein, and against Martin Dougherty, Sr., and the People's Casualty Claim Adjustment Company, defendants therein, for the sum of $1,000 and costs.

From this judgment rendered by the appellate court the casualty company and Martin Dougherty have appealed, and the first question presented is whether a court of equity has jurisdiction to entertain the bill. It appears from the master's report-and the report seems to be sustained by the evidence-that on the commencement and prosecution of the suit in the circuit court the complainants, Hughes and Wood, acted solely for, and under employment of, the casualty company, and they were paid for their services in the circuit court. After an appeal was taken to the appellate court the relations existing between the complainants and the casualty company were dissolved, and it is claimed by the complainants that they were employed to prosecute the appeal in the appellate court by Sam. W. Hurdle, next friend of the minor, and that the parents of the minor consented, in writing, that they should attend to the cause in the appellate court. Upon looking into the evidence, it appears that Sam W. Hurdle was selected as next friend of the minor by the casualty company before the suit was instituted, and that he acted for the company as solicitor of claims. He testified that he made no arrangement with the complainants to go on with the case, and gave them no authority to do so. Mr. and Mrs. Dougherty testified: That Wood called on them after the judgment had been obtained in the circuit court, and said he and Mr. Hughes desired to go on with the suit, to which they replied that the casualty company and Mr. Beck were to employ lawyers and pay them; that the whole matter was in Beck's hands, and whatever he agreed to would be satisfactory. Wood replied that the company and Beck had no objections, but were willing for complainants to continue in the case. That, relying on their representations, they signed a paper authorizing the complainants to appear in the case. It also appears that, after the trial of the cause in the circuit court of Kane county, Wood and the casualty company entered into an agreement in writing in which Wood agreed to accept $200 in full for his services in the company's cases, except the cases of Dougherty v. Chicago, M. & St. P. Ry. Co., Elder v. Atchison, T. & S. F. R. Co., and Hall v. Penn. Co. The agreement contained the following stipulation in behalf of Wood:

‘I hereby agree to withdraw from all such suits in which I now appear as attorney of record in the circuit and superior courts of Cook county, and in the circuit court of Kane and Will counties, and in the United States circuit court of the Northern district of Illinois. In addition to the payment of the above sum of $200 as aforesaid, the said Cyrus J. Wood is to receive, when the collections are made, the amounts set opposite each case given, viz.:

Dougherty v. C. M. & St. P. Ry. Co. $150 00

Elder v. A., T. & S. F. R. R. Co. 100 00

Hall v. Penn. Co. 25 00

‘And also in full for any other services rendered, either legally or otherwise, connected with any business of said company or its clients.’

It also appears that after the judgment was affirmed in the appellate court, and an appeal was taken to this court on motion of complainant Hughes, Adolph Moses was appointed guardian ad litem for the minor, and he at once employed William E. Hughes as his attorney in this court, and under that employment he acted until the case was settled. In this connection it is proper to state that Wood testified that he was employed by Hurdle, the next friend, to attend to the case in the appellate court, and Beck testified that, in the settlement with Wood, he was to remain in the case until it was finally settled or disposed of, but the $150 mentioned in the agreement was to pay him for his services. The foregoing are, in brief, all the circumstances under which the services were rendered for which the complainants seek to recover. As has been seen, the complainants were employed to prosecute the case to final judgment in the circuit court, by the casualty company. For these services they were employed and paid by the casualty company, and no liability ever existed against the minor, the guardian, or the funds of the minor in the hands of the guardian. As to the services rendered in the appellate court, there is some evidence in the record tending to prove that complainants were employed by Hurdle, the next friend of the minor, but the preponderance of the evidence is the...