Galveston, H. & S. A. Ry. Co. v. Ginther

• Citation: 72 S.W. 166
• Parties: GALVESTON, H. & S. A. RY. CO. v. GINTHER et al.
• Decision Date: 02 March 1903
• Court: Texas Supreme Court

72 S.W. 166

GALVESTON, H. & S. A. RY. CO. v. GINTHER et al.

Supreme Court of Texas.

March 2, 1903.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Paul Ginther against the Galveston, Harrisburg & San Antonio Railway Company, in which Patterson & Buckler, plaintiff's attorneys, intervene. From a judgment for interveners, affirmed by the Court of Civil Appeals (70 S. W. 96), defendant brings error. Affirmed.

Baker, Botts, Baker & Lovett and Beall & Kemp, for plaintiff in error. Patterson & Buckler, for defendants in error.

WILLIAMS, J.

Ginther, intending to sue plaintiff in error for damages for personal injuries, employed Patterson & Buckler as his attorneys, and executed to them the following instrument: "El Paso, Texas, March 26th, 1900. I have employed Patterson & Buckler to sue the Galveston, Harrisburg & San Antonio Railway Company for $20,000.00, as damages for injuries sustained by me in consequence of its negligence on February 22nd, 1900, in the yards at El Paso, Texas, on repair track No. 3. I agree to give, and hereby assign to them one-third of whatever may be recovered in said suit, or by way of compromise. [Signed] Paul Ginther." The attorneys filed the suit April 6, 1900, and were prosecuting it, when Ginther compromised with plaintiff in error, who, with notice of the rights of the attorneys under the above instrument, paid him $2,500 in full settlement. Patterson & Buckler intervened in the suit, alleging Ginther's insolvency, and the other facts, and sought and obtained judgment against plaintiff in error for one-third of the amount paid to Ginther. This judgment having been affirmed by the Court of Civil Appeals (70 S. W. 96), this writ of error was sued out. The propositions upon which a reversal is asked are: (1) That the alleged assignment was not good, because (a) suit not having been filed when it was made, the cause of action was not one which would have survived the death of the assignor, under the act of 1895 (Sayles' Ann. Civ. St. art. 3353a), and which was not, therefore, assignable under that statute; and (b) such assignment was not in accordance with the act of 1889 (Sayles' Ann. Civ. St. art. 4647), in that it was made before the suit was begun, and was not filed and noted on the docket as required by that act. (2) That the contract was contrary to public policy, and void, in that it attempted to take away the right of the person injured to compromise his claim. (3) That the instrument was not an assignment, but a mere agreement for payment of a contingent fee.

In the case of Gulf, Colorado & Santa Fé Railway Company v. Moore (Tex. Civ. App.) 68 S. W. 559, the action was brought by the heirs of the person injured, who had died without having sued. The point was made by the defendant, and overruled by the Court of Civil Appeals, that the cause of action abated upon the death of the plaintiff's ancestor. This ruling was assigned in an application to this court for writ of error, which was refused. In Railway Company v. Andrews, 67 S. W. 923, the question as to the validity of an assignment made before institution of suit was considered, and decided in favor of its validity by the Court of Civil Appeals, and upon application for a writ of...