Gerritzen v. Louisville & N. R. Co., 24487.

• Decision Date: 05 April 1938
• Docket Number: No. 24487.,24487.
• Citation: Gerritzen v. Louisville & N. R. Co., 115 S.W.2d 44 (Mo. App. 1938)
• Court: Missouri Court of Appeals
• Parties: GERRITZEN et al. v. LOUISVILLE & N. R. CO.

115 S.W.2d 44

GERRITZEN et al. v.LOUISVILLE & N. R. CO.

No. 24487.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action by Al. F. Gerritzen and another, also known as Gerritzen & Gerritzen, attorneys, against the Louisville & Nashville Railroad Company to enforce an attorney's lien.Judgment for plaintiffs, and defendant appeals.

Affirmed.

Harold R. Small, of St. Louis, for appellant.

Gerritzen & Gerritzen, of St. Louis, pro se.

BECKER, Judge.

This is an action under our Attorneys' Lien Statutes, sections 11716, 11717, Rev. St.1929, Mo.St.Ann. §§ 11716, 11717, pp. 630, 633.The suit was brought in a justice of the peace court and on appeal was tried in the circuit court of St. Louis, Mo., before the court without the intervention of a jury, and resulted in a judgment in favor of plaintiffs for $200 with interest and costs, and against defendant and surety; from which judgment defendant in due course appeals.

The facts show that plaintiffs, as attorneys for Myles V. Gill, brought a suit on his behalf against the Louisville & Nashville Railroad Company in the circuit court of St. Louis, Mo., for damages for injuries sustained by Gill through the alleged negligence of the defendant which caused Gill, a trespasser, to fall from the top of a freight car and injure himself.

At the instance of a brother of Gill a settlement of Gill's case against the Louisville & Nashville Railroad Company was had, without the knowledge of Gill's attorneys, through the Louisville & Nashville Railroad Company's claim agent, George Millet, whereby $200 was paid to Gill, the check given him in settlement containing a notation that it was for "settlement in full," and Gill at the time signing a "full and complete release."The Louisville & Nashville Railroad Company having made no settlement with the attorneys for Gill, who had a 50 per cent. contingent fee agreement with Gill, the attorneys brought suit in the justice court for $200, an amount equal to that paid Gill in settlement by defendantLouisville & Nashville Railroad Company.

A few days after the settlement, Gill's case was dismissed on a written stipulation signed by Gill and the attorneys for the Louisville & Nashville Railroad Company, said stipulation reading as follows: "This case having been fully settled by payment made by defendant to plaintiff, it is hereby dismissed at the costs of defendant."The costs were thereafter paid by defendant.

The written agreement of settlement contained no reference to the question of the payment of the fees of Gill's attorneys, and at the trial plaintiffs offered Gill as a witness, and he was asked:

"Q.Did you ask Mr. Millet who would take care of court costs and attorneys' fees?A.I did.

"Q.What did he say?A.He said, `We will take care of that.'

"Q.And just whom did he mean by `We'?A.Of course the Louisville & Nashville Railroad Company."

On redirect examination he testified:

"Q.And did you understand you were to receive the $200 yourself, Mr. Gill?A.Yes, certainly.

"Q.Did you understand you were to divide any amount of that with your attorneys?A.Oh, no."

George Millet, defendant's claim agent who settled the case, as a witness for defendant, testified that at the instance of Gill's brotherhe took up the question of settlement, and that it was agreed that an amount a little over the sum necessary to reimburse Gill for his hospital expenses would be paid him by the company to dispose of the case.In answer to the question as to whether at any time he agreed to pay the fees of Gill's attorneys, he answered: "I did not."

At the close of the casedefendant requested a declaration of law that under the pleadings and evidence the plaintiffs were not entitled to recover from defendant, which request the court overruled.

The court, at the request of plaintiffs and the defendant, made findings of fact which, so far as the issues depending on contradictory evidence were concerned, embodied the facts as supported by the evidence adduced by the plaintiffs.

The sole question presented for our consideration on this appeal is whether "on the record before the Court there was evidence to justify the Court in holding that plaintiffs were entitled to recover not $100 on the fifty per cent. contract, but $200, the same amount as was paid Myles V. Gill in full settlement. * * *"

Under section 11717, Rev.St.1929, Mo.St.Ann. § 11717, p. 633, of our Attorneys' Lien Act, an attorney employed on a percentage basis has a lien on the cause of action of his client.The cause of action remains the property of the client and not the attorney, and the client retains the absolute right to make any settlement or adjustment of it, absent fraud or collusion, which he desires regardless of the wishes of his attorney.But if in the making of a settlement or adjustment the attorney's lien is disregarded, the attorney may bring an independent action against defendant.Wait v. Railroad Co., 204 Mo. 491, 103 S.W. 60;Curtis v. Met. St. Ry. Co., 118 Mo.App. 341, 94 S.W. 762;Yonge v. Transit Co., 109 Mo.App. 235, 84 S.W. 184;Taylor v. Transit Co., 198 Mo. 715, 97 S.W. 155;Gillham v. Met. St. Ry. Co., 282 Mo. 118, 221 S.W. 1.

Where a settlement is made by the client prior to final judgment, which is not affirmatively shown to have been covenantly intended as a fraud on the attorney, which settlement covers the litigant's whole claim or cause of action, and which does not show that the client has only settled and...