Fenn v. Hart Dairy Co.

• Citation: 83 S.W.2d 120
• Decision Date: 04 June 1935
• Docket Number: No. 23173.,23173.
• Parties: BERT E. FENN, APPELLANT, v. HART DAIRY COMPANY, A CORPORATION, RESPONDENT.
• Court: Court of Appeal of Missouri (US)

83 S.W.2d 120

BERT E. FENN, APPELLANT, v. HART DAIRY COMPANY, A CORPORATION, RESPONDENT.

No. 23173.

St. Louis Court of Appeals. Missouri.

Opinion filed June 4, 1935.

Appellant's Motion for Rehearing Overruled June 18, 1935.

Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

AFFIRMED.

Hall & Dame for appellant.

(1) The petition is sufficient in form and contains all necessary elements, for stating cause of action based on attorney's lien statutes. R.S. Mo. 1929, Secs. 11716, 11717; Midland Valley R.R. Co. v. Jo Johnson (Ark.), 215 S.W. 665, 7 A.L.R. 1007; Haj v. American Bottle Co., 182 Ill. App. 636. (2) The rule that an infant is bound by implied promise or contract to pay for necessaries furnished such infant is applicable under the facts set out in plaintiff's petition. Jones v. Yore, 142 Mo. 38; Walton v. Yore, 58 Mo. App. 562; Sutton v. Heinzle, 84 Kan. 756, 34 L.R.A. (N.S.) 238; 7 A.L.R. 108, 1011 Ann.; Nagel v. Schilling, 14 Mo. App. 576. (3) Attorney's services rendered in prosecuting suit in behalf of an infant for damages arising from personal injuries, in the situation presented by the petition, are necessary. Jones v. Yore, 142 Mo. 38; Crafts v. Carr, 24 R.I. 397, 53 At. 275; Hickman v. McDonald, 164 Iowa, 50; Oaks v. Short et al. (Mo.), 292 S.W. 738, l.c. 740. (4) The implied promise by which an infant (or adult person) is bound to pay for attorney's services is such as to give application to attorney's lien statutes. Mills v. Metropolitan Street Ry. Co., 228 Mo. 118, 221 S.W. 1; Brookshire v. Met. Life Ins. Co. (Mo. App.), 56 S.W. (2d) 817; State ex rel. v. Roehrig, 8 S.W. (2d) 998; Wait v. Atchison etc. R. Co., 204 Mo. 491; Lawson v. Missouri & Kansas Tel. Co., 178 Mo. App. 124; Neeper v. Heinback, 249 S.W. 440 (Mo. App.).

Roessel & Minton for respondent.

(1) One acting as next friend for an infant in litigation has no authority to bind the infant by a contract for attorneys' fees. Hauck v. Bridwell, 28 Mo. App. 644; Plummer v. Northern Pacific Ry. Co., 98 Wash. 67, 7 A.L.R. 104; Cole v. Superior Ct., 63 Cal. 86; Re Stone, 176 N.C. 336; Re Hart, 131 App. Div. (N.Y.) 661. (2) The personal injury action in the instant case is not necessaries. Perrin v. Wilson, 10 Mo. 451; Rapoport v. Hussey, 267 S.W. 68, 31 C.J. 1077; Rhodes v. Frazier's Estate, 204 S.W. 547, l.c. 548 (4-6); Thrall v. Wright, 38 Vt. 494; McIsaac v. Adams, 190 Mass. 117; Grisson v. Biedleman, 129 Pac. (Okla.) 853, 44 L.R.A. (N.S.) 411. (3) An infant cannot be held to any implied obligation to pay for attorneys' fees. Dillon v. Bowles, 77 Mo. 603, l.c. 609.

McCULLEN, J.

This suit was brought by appellant, hereinafter referred to as plaintiff, against respondent, hereinafter referred to as defendant, to recover under the attorney's lien statutes for services rendered by plaintiff as an attorney at law in a case brought in behalf of a minor, by his next friend, against this same defendant for damages for personal injuries to the minor.

Defendant filed a demurrer to plaintiff's petition on the ground that the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court and plaintiff declined to plead further, whereupon judgment was rendered for defendant. Plaintiff brings the case to this court by appeal.

Plaintiff's petition alleges that plaintiff is, and was at all times mentioned, a duly licensed and practicing attorney at law, and that he has been for more than thirty years continuously engaged in such practice in the City of St. Louis, Missouri; that defendant is a corporation engaged in the dairy business in St. Louis County, Missouri; that on July 10, 1930, in his capacity of attorney at law, plaintiff filed suit in the Circuit Court of the City of St. Louis, Missouri, in behalf of Arlie Casey, then a minor sixteen years of age, as plaintiff, by Thomas Casey, father of the minor, his duly appointed next friend, against defendant herein as defendant in that suit to recover damages for personal injuries which in that suit were alleged to have been caused by the negligence of the defendant in the operation of one of its automobile trucks.

Plaintiff further alleges that: "said suit was filed as a result of and in pursuance of said Arlie Casey and his father, Thomas Casey (who upon the filing of said suit was appointed next friend as aforesaid) consulting plaintiff and seeking plaintiff's professional advice and assistance in reference to the claim or right of action arising from the facts connected with the injuries sustained by Arlie Casey and engaging and requesting plaintiff to take charge of the prosecution of said claim and to file suit thereon, with the understanding and necessary condition that plaintiff's fee for such services as he rendered therein was to be contingent upon recovery and to be paid from the amount to be recovered in said suit or claim; ..."

Plaintiff's petition further alleges that he made extensive investigation of the facts in connection with the injuries of Arlie Casey; that he prepared and filed a petition for appointment of next friend, and the petition in said suit, signed the same as attorney for the plaintiff therein and became and remained attorney of record in that suit; that plaintiff brought about the appointment of the next friend as aforesaid, the issuance and service of summons on the defendant Hart Dairy Company therein, the docketing of the cause for trial, and prepared for the trial of said cause, all with the consent, cooperation and assistance of said minor and his next friend; that he performed his duties and obligations as attorney in said cause and held himself in readiness to continue to the completion thereof.

The petition further alleges that while said suit by the minor against the defendant was pending, the defendant, without plaintiff's written assent and without his knowledge or consent, entered into a settlement agreement with the minor and settled said suit by paying to or for the minor the sum of $1000; that on April 22, 1932, the defendant, for the purpose of carrying into effect that settlement, caused a suit on the minor's said claim to be filed by the minor, through his mother as next friend, in a justice of the peace court in the City of St. Louis, and judgment to be rendered against said defendant in the sum of $750, which was the limit of jurisdiction of the justice of the peace; that said defendant paid and satisfied that judgment, and in addition thereto paid $250 as consideration for the settlement.

It is further alleged in the petition that the defendant then filed an amended answer in the suit that had been filed against it by plaintiff as attorney for the minor, setting up the aforesaid settlement as a bar as res adjudicata therein, and procured an arrangement with the minor and the minor's father and mother preventing them from giving testimony or further assistance in said suit. Plaintiff alleges that said settlement and the payment so made to the minor were brought about by the services of plaintiff and induced by the suit which plaintiff had filed as aforesaid as a measure in defense and defeat thereof, and that:

"Said services of plaintiff were necessary to said Arlie Casey in realizing such benefit or any benefit or recovery on said claim, and by reason of the premises the said Arlie Casey became bound and was legally obligated to pay plaintiff the reasonable value of his said services; that plaintiff received no part of said settlement consideration, and has received nothing for his said services."

The petition further alleges that by reason of the premises "the plaintiff had and now has a lien upon Arlie Casey's said cause of action to the amount of the reasonable value of plaintiff's said services, and plaintiff says that his said services are of the reasonable value of $500.00."

Plaintiff alleges that he is without remedy or means of securing payment for his services save through his statutory lien under Sections 11716 and 11717, Revised Statutes Missouri 1929. He prays the court to adjudge and decree that he have a lien on the said cause of action in the sum of $500 and asks for judgment against defendant in said sum.

Plaintiff contends that the court erred in sustaining defendant's demurrer to his petition and in rendering judgment for defendant.

In determining the sufficiency of a petition on demurrer thereto, we must take as true all the material allegations of fact appearing therein. [Fullington v. Ozark Poultry Supply Co., 327 Mo. 1167, 39 S.W. (2d) 780.] Statements of conclusions of law, however, are not admitted by demurrer. [Koewing v. Green County Bldg. & Loan Assn., 327 Mo. 680, 38 S.W. (2d) 40.]

Plaintiff argues that the rule, that an infant is bound by an implied promise to pay for necessaries furnished to him, is applicable under the facts stated in the petition, and that plaintiff's services in prosecuting the suit in behalf of the infant for damages for personal injuries in the situation presented by the petition come under the head of necessaries. It is urged by plaintiff that the implied promise by which the infant was bound to pay for the services is such as to make the attorney's lien statutes applicable.

The first of the two sections of the statutes relied upon by plaintiff provides as follows:

"The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment, in his client's favor, and the proceeds thereof in whoseever hands they may come; and cannot be affected by any settlement between the parties before or after judgment." [Section 11716, Revised Statutes Missouri 1929 (Mo. Stat. Ann., Sec. 11716, p. 630).]

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