Gabbert v. Evans
| Decision Date | 12 May 1914 |
| Citation | 166 S.W. 635,184 Mo.App. 283 |
| Parties | LEWIS C. GABBERT and ORESTOS MITCHELL, Co-partners, Appellants, v. ALABAMA C. EVANS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon D. E. Blair, Judge.
REVERSED AND REMANDED (with directions).
Cause reversed and remanded.
J. W McAntire, for appellants.
(1) The court alone must say what is and what is not negligence. The facts were admitted. There was nothing relating to the defense of negligence to be submitted to the jury. Tarwater v. Railroad, 42 Mo. 193; Vickers v Same, 42 Mo. 198; Yarnell v. Railroad, 75 Mo 575. (2) The affidavit for an appeal was sufficient. It followed the statute in haec verba. There was surplusage in the unnecessary preamble to the affidavit, but that did not restrict the meaning of the affidavit itself. R. S. 1909, sec. 2040. (3) The appellate courts of this State have not been technical but liberal in the construction of affidavits for appeal. Perkins v. Mason, 105 Mo.App. 315; Yost v. Silvers, 138 Mo.App. 524; Ruth v. McPherson, 150 Mo.App. 694; DeBalt v. Railroad, 123 Mo. 496. (4) The defendant was occasioned no damage by reason of her attorney filing such affidavit for appeal, though this court should hold same to be defective and insufficient to perfect appeal. Her right to writ of error remained unimpaired, every step having been taken to preserve the record. R. S. 1909, sec. 2043; Brill v. Meek, 20 Mo. 358; Chinn v. Davis, 21 Mo.App. 363. (5) An attorney is liable in damages only, for such neglect of his professional duty as in its legal effect works injury to his client and this injury must be clearly established. There was no injury established to the defendant in the case at bar. Thompson on Negligence, sec. 6698; Jackson v. Clopton, 66 Ala. 29; Palmer v. Ashley, 3 Ark. 75; Knave v. Baird, 12 Ind. 318; Harter v. Morris, 18 Ohio St. 492.
Edward E. Sapp and H. W. Currey, for respondent.
(1) On appeal from an order sustaining a motion for new trial, this court cannot reverse unless it can say the trial court abused its discretion; and, if there is any theory on which the trial court's judgment, or order, sustaining a motion for new trial can be justified its judgment must be sustained. Gates City Nat. Bank v. Boyer, 161 Mo.App. 143; Lorenzen v. Railroad, 249 Mo. 182; Aaron v. Railroad, 159 Mo.App. 307; Hopkins v. Springfield, 164 Mo.App. 682; Allen v. Railroad, 167 Mo.App. 498. (2) On an appeal from an order sustaining a motion for new trial, every assignment of error set forth in the motion for new trial is before the appellate court and must be considered by it, and this, notwithstanding the fact, that the trial court has set forth, in its order, the specific grounds on which it sustained the motion for new trial. Gibson v. Ducker, 170 Mo.App. 135; Peper v. Peper, 241 Mo. 260; State ex rel. v. Thomas, 245 Mo. 65; Wears v. Weisberg, 163 Mo.App. 580. And the appellate court is not confined to the ground upon which the lower court sustained the motion, but may sustain it upon any grounds therein set forth. Barr v. Hays, 172 Mo.App. 591. (3) Plaintiff's contract of employment bound him to bring to the trial of the case the professional knowledge and diligence which members of the legal profession ordinarily bring to the trial of suits of this nature. This obligation, the law writes into his contract of employment, whether by defendant, as executrix or otherwise. Plaintiff admitted that he filed an insufficient and defective affidavit for appeal--one that would not be filed by a careful lawyer with a fair knowledge of Missouri Statutes, and by his own evidence admitted that he was negligent. 4 Cyc., p. 956, title "Duties & Liabilities of Attorneys. " Drair v. Hogan, 50 Cal. 121; Pennington v. Yell, 11 Ark. 227, 52 Am. Dec. 262; Gilbert v. Williams, 5 Am. Dec. 77; Gaar v. Hughes, 35 S.W. 1092; Marsh v. Whitmore, 21 Wall. 178; Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417; Hillegass v. Bender, 78 Ind. 225; Goodman v. Walker, 30 Ala. 482, 68 Dec. 134; Citizens, etc., Ass'n v. Friedley, 23 N.E. 1075. (4) Where the law writes into a contract for service, an obligation of peculiar faithfulness, and especial knowledge and skill, and such peculiar faithfulness springs from the character of the service and such knowledge and skill are the inducing cause for the contract of employment, any failure to enforce the requisite degree of faithfulness or of skill and diligence is a breach of the contract and precludes a recovery on the contract of employment. Peterson v. Moyer, 46 Minn. 468, 49 N.W. 245; Tussey v. Owens, 56 S.E. 128; Dermott v. Jones, 23 How. 512; Elliott v. Caldwell, 43 Minn. 357, 45 N.W. 845; Armin v. Loomis, 82 Miss. 86, 51 N.W. 1097. (5) If the law writes into the contract an agreement of the plaintiff that he possessed the knowledge and skill that lawyers ordinarily bring to professional duties, and also an agreement to use the diligence which lawyers ordinarily use in such matters as appealing cases to the court of appeals, and if, ordinarily, lawyers file proper affidavits for appeal, then plaintiff cannot recover because he proved by his own testimony that he failed to perform his contract. Cann v. Rector, 111 Mo.App. 182; Veatch v. Norman, 109 Mo.App. 394.
In this case the defendant is resisting the payment of an attorney fee and personal expenses, alleged to be due to plaintiffs, a firm of St. Joseph lawyers, in defending a suit originating in the probate court of Atchison county, Missouri. The plaintiffs claim that defendant, who was executrix of the estate of W. W. Hudgens, deceased, employed them to defend a claim for $ 2000, presented against said estate by J. W. Young, agreeing to pay plaintiffs a fee of $ 500 and the necessary personal expenses of plaintiffs in attending court, etc., in connection therewith. The answer sets up that defendant did not contract personally with plaintiffs but only on behalf of the Hudgens estate, in her capacity as executrix; that such fee was by the contract to be contingent on plaintiffs' success in defending against said claim; and that plaintiffs were negligent in defending against said claim and did not use that professional knowledge and skill which they as attorneys were required to use in conducting such defense, resulting in losing the case and having the claim allowed against the estate for $ 1500 on appeal and trial in the circuit court, and in compromise of which defendant, as executrix, was compelled to pay $ 900. The amount of plaintiffs' fee is not in dispute.
After the evidence was all in, the court submitted the case to the jury on the issues of whether the employment of plaintiffs was contingent or absolute and whether by defendant individually or as executrix on behalf of the estate. The evidence on these points was conflicting and the jury found for plaintiffs in the sum of $ 501 on instructions free from error and of which defendant makes no serious complaint. There is only one point in connection with these defenses that needs mention which is that, as plaintiffs' employment was in behalf of the estate, it is contended that any promise by defendant to pay same personally is an agreement within the Statute of Frauds and must be in writing under the first clause of section 2783, Revised Statutes 1909. This promise, however, as thus resolved by the jury, is not a promise by an executor to answer for an existing or previously incurred debt of the estate but is an original promise by the defendant, who, it is shown, was the sole beneficiary of the estate; and such agreement is not within the statute. [George & Lowe v. Williams, 58 Mo.App. 138, 140; Steele v. Order of Pyramids, 125 Mo.App. 680, 682, 103 S.W. 108.]
The trial court instructed the jury that there was no sufficient evidence to constitute a defense on the ground of negligence of plaintiffs in the performance of their duties as attorneys in defending the case in which they were employed. After the return of the verdict for plaintiffs on the issues submitted, the trial court sustained defendant's motion for new trial, specifying as the reason for so doing that the court erred in withdrawing the defense of negligence from the jury and refusing to give instructions relating to such defense. It is from this order that plaintiffs have appealed.
The defendant invokes the doctrine that this court, in determining whether the trial court properly granted a new trial, is not confined to the ground or grounds specified by the court for so doing but must inquire into all the grounds mentioned in the motion therefor and sustain the court's action if any such grounds are found sufficient. [Barr v Hays, 172 Mo.App. 591, 599, 155 S.W. 1095, and the cases there cited.] It is suggested that the motion for new trial ought to be sustained on the ground that the verdict is against the weight of the evidence on the issues submitted to the jury; and, since appellate courts rarely interfere with the discretion reposed in trial courts in determining the weight of the evidence on such motions, we should not do so here. This assumes that the trial court did weigh the evidence and exercise its discretion, while there is nothing in this record to indicate that it did so. This court does not set aside verdicts as against the weight of the evidence and, in the absence of some showing that the trial court did so, we cannot assume that it did. [Richter v. Railroad, 145 Mo.App. 1, 6, 129 S.W. 1055; Barr v. Hays, 172 Mo.App. 591, 601, 155 S.W. 1095; Roney v. Organ, 176 Mo.App. 234, 161 S.W. 868, 869.] Moreover, where a party relies on some valid ground for sustaining the motion other than that...
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