Gabbert v. Evans

• Decision Date: 07 April 1914
• Docket Number: No. 1195.,1195.
• Citation: 166 S.W. 635,184 Mo. App. 283
• Parties: GABBERT et al. v. EVANS.
• Court: Missouri Court of Appeals

166 S.W. 635

184 Mo. App. 283

GABBERT et al. v. EVANS.

No. 1195.

Springfield Court of Appeals. Missouri.

April 7, 1914.

Rehearing Denied May 12, 1914.

1. FRAUDS, STATUTE OF (§ 23)—ORIGINAL OR COLLATERAL PROMISE.

Where an executrix who was the sole beneficiary of the estate individually employed attorneys to defend against a claim against the estate, her promise to pay them was not a promise to answer for an existing or previously incurred debt of the estate, but an original promise, not required to be in writing by Rev. St. 1909, § 2783, providing that no action shall be brought to charge any executor or administrator upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default, or miscarriage of another, unless the agreement be in writing.

2. APPEAL AND ERROR (§ 933)—PRESUMPTIONS IN SUPPORT OF JUDGMENT.

On an appeal from an order granting a new trial, it could not be assumed that the court set aside the verdict as against the weight of the evidence, in the absence of any showing that it did, in order to apply the rule that the discretion reposed in trial courts in determining the weight of the evidence on such motions will be rarely interfered with.

3. APPEAL AND ERROR (§ 854)—REVIEW—APPEAL FROM ORDER GRANTING NEW TRIAL.

A party relying on some valid ground for sustaining a motion for a new trial other than that specified by the trial court must discover and point out such ground.

4. ATTORNEY AND CLIENT (§ 129)—NEGLIGENCE IN TRIAL OF CAUSE.

Whether a defendant should introduce evidence on his own behalf or submit the case on plaintiff's evidence depends so largely on sound judgment applied to the particular facts that whether attorneys for a defendant were negligent in failing to introduce evidence could not be determined, where all the facts and the whole situation as it presented itself to such attorneys were not before the court.

5. ATTORNEY AND CLIENT (§ 86) — REPRESENTATION OF CLIENT BY ATTORNEY—AUTHORITY OF ATTORNEY.

In an attorneys' action for compensation, defended on the ground of negligence, defendant was bound by the statement of her counsel during the trial that the only negligence complained of was the failure of such attorneys to

perfect an appeal in the action in which they appeared for her.

6. ATTORNEY AND CLIENT (§ 107)—NEGLIGENCE—DEGREE OF SKILL REQUIRED.

Attorneys were bound to use, in the trial of a cause in which they were employed, the professional knowledge and diligence which members of the legal profession ordinarily possess, and were liable for lack of ordinary skill and diligence.

7. ATTORNEY AND CLIENT (§ 161)—COMPENSATION—DEFENSES—NEGLIGENCE.

An attorney cannot recover for services which are of no value to his client because of his lack of ordinary skill or diligence.

8. ATTORNEY AND CLIENT (§ 167)—ACTIONS —QUESTION OF LAW OR FACT.

In attorneys' action for compensation, defended on the ground of negligence, where the only question was as to the sufficiency of an affidavit for appeal prepared by such attorneys, the question of negligence or want of skill was one of law.

9. EVIDENCE (§ 508) — ACTIONS — QUESTION OF LAW OR FACT.

Whether an act, as the filing of an insufficient affidavit for appeal, shows want of ordinary professional skill is a question for the jury on expert evidence.

10. ATTORNEY AND CLIENT (§ 161)—COMPENSATION—DEFENSES—NEGLIGENCE.

To render an attorney liable for damages or defeat a recovery for his services on the ground of negligence or want of professional skill, the alleged act of negligence must work injury and loss to the client.

11. ATTORNEY AND CLIENT (§ 166)—ACTIONS —BURDEN OF PROOF.

In attorneys' action for compensation, defended on the ground of negligence, it was incumbent on the client to establish the fact that the attorneys' negligence worked injury and loss to her.

12. ATTORNEY AND CLIENT (§ 161)—COMPENSATION—DEFENSES—NEGLIGENCE.

The filing by attorneys of an insufficient affidavit for an appeal did not defeat a recovery for their services, where their client consulted and employed a new attorney, and had abundant time thereafter to have the judgment reviewed by writ of error, but, instead, compromised and settled it.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Lewis C. Gabbert and another, copartners, against Alabama C. Evans. From an order granting a new trial after a verdict for plaintiffs, they appeal. Reversed and remanded, with directions.

J. W. McAntire, of Joplin, for appellants. Edward E. Sapp, of Galena, Kan., and H. W. Currey, of Webb City, for respondent.

STURGIS, J.

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, Mo. The plaintiffs claim that defendant, who was executrix of the estate of W. W. Hudgens, deceased, employed them to defend a claim for $2,000, 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 $1,500 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, R. S. 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 or 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 (Mo. App.) 161 S. W. 868, 869. Moreover, where a party relies on some valid ground for sustaining the motion other than that specified by the court, he must discover and point out such ground, and that has not been done here. Crawford v. Stock Yards Co., 215 Mo. 394, 402, 114 S. W. 1057; Roney v. Organ, supra. It follows, therefore, that if the action of the trial court in granting the new trial is to be sustained at all, it must be on the ground set forth in the record, to wit: In withdrawing the question of plaintiffs' negligence from the jury, and not submitting the same on instructions asked by defenda...