Downey v. Northern P. Ry. Co.
| Decision Date | 29 December 1924 |
| Docket Number | 5567. |
| Citation | 232 P. 531,72 Mont. 166 |
| Parties | DOWNEY et al. v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by T. E. Downey and H. J. Freebourn against the Northern Pacific Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions to grant new trial.
Walker & Walker, of Butte, and Gunn, Rasch & Hall, of Helena, for appellant.
H. J Freebourn and T. E. Downey, both of Butte, pro se.
The complaint in this action alleges that the plaintiffs are duly licensed attorneys of this state practicing their profession at Butte, and that the defendant Northern Pacific Railway Company is a corporation; that on the 13th day of December 1922, acting as attorneys for the plaintiff therein they commenced an action in the district court of Silver Bow county entitled Leslie L. Vaterlaus, Plaintiff, v. Northern Pacific Railway Company and Sam McAlpin, Defendants, which action was numbered 26731 in the files and records of said court; that thereafter the defendants therein filed a joint answer; that while said action was pending, and before a trial thereof had been had upon the merits, it was dismissed by the clerk of the court upon receipt of a præcipe for its dismissal signed by the plaintiff therein; that said præcipe was signed and filed and said case dismissed without the knowledge or consent of the plaintiffs. It is then alleged that the defendants "fraudulently, collusively, and maliciously connived with and induced the said plaintiff Vaterlaus to dismiss said action No. 26731, without and against the consent of and without the knowledge" of the plaintiffs; that these plaintiffs were the only attorneys of record of the plaintiff in said cause No. 26731; that they had a lien upon the plaintiff's cause of action for the amount of their attorneys' fees therein, and that the services which they performed in that connection were of the reasonable value of $1,500, no part of which had been paid, and they ask for judgment against the defendants in this action for the sum of $1,500 actual damages, and $1,000 exemplary damages.
Service of summons in this action was not made upon the defendants McAlpin and Leslie L. Vaterlaus, and they did not appear. The defendant Northern Pacific Railway Company filed an answer in which the commencement and dismissal of said cause No. 26731 are admitted as alleged in the complaint, except that it is denied that the dismissal was procured by fraud or collusion. For a separate defense the answer alleges that when said cause No. 26731 was commenced by the plaintiffs, the said Leslie L. Vaterlaus was a minor under the age of 21 years; that at said time no general guardian or guardian ad litem had been appointed to act for or on his behalf; that he was without capacity to enter into a legal contract with the plaintiffs, and that he thereafter disaffirmed and repudiated the pretended contract with plaintiffs for the commencement of said action on his behalf.
To this answer the plaintiffs filed a reply in which it was denied that when said Leslie L. Vaterlaus entered into the contract with the plaintiffs for the commencement of case No. 26731 he was a minor under the age of 21 years, but alleged that he was an adult over the age of 21 years and legally competent to enter into such contract. The case was tried before a jury on February 11, 1924, and resulted in a verdict and judgment in favor of the plaintiffs for the sum of $1,000. At the close of all the testimony the defendant had made a motion for a directed verdict upon grounds which will be hereafter noted. Defendants made a motion for a new trial, which was denied, and this appeal is from the judgment.
The testimony introduced at the trial showed that Leslie L. Vaterlaus had or claimed to have a cause of action against the Northern Pacific Railway Company and one Sam McAlpin, its special agent, for an alleged false imprisonment, and that he arranged with the plaintiffs to act as his attorneys in the commencement and prosecution of a suit to recover damages therefore under a contingent fee contract by which they were to receive as their compensation one-half of the amount realized, which contract further provided that neither party should be permitted to settle the case without the consent of the other. Vaterlaus advanced the necessary funds to cover the fees for filing the complaint and making service of process upon the defendants, and thereafter, on December 13, 1922, plaintiffs commenced the action, as agreed, in the district court of Silver Bow county, the same being No. 26731 on the records of said court. In due course the defendants filed an answer in said case. While the action was pending, and before the trial thereof, one M. W. Simmonds, district claim agent of the defendant Northern Pacific Railway Company, having learned that the plaintiff Vaterlaus had gone to his father's home in Cowley, Wyo., went to that place for the purpose of interviewing him. While there, in the course of a conversation with Vaterlaus and his father, Simmonds was advised that Vaterlaus was a minor of the age of 20 years, and thereupon, representing his employer, the Northern Pacific Railway Company, agreed with Vaterlaus and his father upon a basis of settlement for the damages claimed by Vaterlaus in said action No. 26731. To consummate the settlement, Vaterlaus, his father, and Simmonds went to Billings where Vaterlaus and his father employed counsel, had the elder Vaterlaus appointed guardian ad litem of his son Leslie L. Vaterlaus, and commenced a suit in the district court of Yellowstone county against the Northern Pacific Railway Company upon the same cause of action set out in the complaint in cause No. 26731. Immediately following the commencement of this suit, and on the same day, an order of the district court of Yellowstone county was obtained, authorizing its compromise and settlement for the sum of $275. Thereupon the defendant paid to Vaterlaus and his father the sum of $275, and said action was dismissed as fully settled upon the merits. In connection with this settlement, and as part thereof, the defendant also obtained an order from Leslie L. Vaterlaus, directed to the clerk of the district court of Silver Bow county, instructing him to dismiss said action No. 26731, which order was subsequently filed in that court, and the clerk thereof made an order of dismissal of said action on March 23, 1923. The above mentioned settlement, as well as the dismissal of said action No. 26731, was without the knowledge or consent of the plaintiffs, and they were never paid anything for their services in connection therewith. Other matters developed in the testimony will be referred to at appropriate places in later portions of this opinion.
1. Under the issues as framed by the pleadings in this case, it is apparent that one of the vital questions was the age of Leslie L. Vaterlaus. If the plaintiffs had no legal contract upon which they could assert a valid claim against him for the services which they rendered in case No. 26731, they cannot maintain this suit, since the right to recover against the defendant herein depends solely upon their right to recover from him.
The elder Vaterlaus, father of Leslie L., appearing as a witness for defendant, testified that Leslie L. was born on September 25, 1902, at Montpelier, Bear Lake county, Idaho. The testimony showed that the agreement alleged to have been entered into between the plaintiffs and Leslie L. was dated about the ------ day of September, 1922, so that if the statement of the elder Vaterlaus was true, Leslie L. was at that time just about 20 years of age.
While the plaintiff Freebourn was being examined as a witness in plaintiffs' behalf, the following transpired:
"Q. Did he (referring to Leslie L. Vaterlaus) ever state to you what his age was?
Mr. Walker: Objected to as calling for the conclusion of the witness, and hearsay.
Mr. Hall: And on the further ground that it is immaterial under the issue as formed in this case.
The Court: In the reply, the plaintiffs allege that Vaterlaus was not a minor?
Mr. Hall: Yes.
The Court: I will overrule your objection.
Mr. Hall: Note our exception. (No answer.)
Q. What age did he state he was? A. He said he was 23 years of age." Later on, the plaintiff Downey, testifying as a witness for the plaintiffs, was interrogated as follows in reference to a conversation with Leslie L. Vaterlaus:
"Q. And at that time, did you have any conversation with him respecting his age?
Mr. Hall: We object to this, as immaterial under the issues; not binding on the defendant.
The Court: Overruled.
A. Yes, sir.
Q. What was that conversation? A. Why, he said * * * that he was 23."
Aside from the statements attributed to Leslie L. Vaterlaus by these witnesses, there is no refutation in the record of the direct testimony of the elder Vaterlaus as to the age of Leslie L., hence their importance.
Defendant's first specification of error is predicated upon the ruling of the court in admitting these statements. The plaintiffs however, say that the defendant is precluded from urging this point because the record in each instance shows that no objection was made to the final question in response to which the objectionable statements were made, and, in support of this contention, invoke the rule, frequently announced by this court, to the effect that error may not be predicated upon the admission of testimony when it was received without objection. The rule invoked is not applicable here. In each of the instances the first question asked, to which proper objection was made, by necessary reference, related to the facts...
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