Gilbert v. The Atchison

• Decision Date: 08 April 1922
• Docket Number: 23,503
• Citation: 205 P. 1116,111 Kan. 46
• Court: Kansas Supreme Court
• Parties: LEE JUDY and EARLE R. GILBERT, Partners under the Firm Name of JUDY & GILBERT, Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants

205 P. 1116

111 Kan. 46

LEE JUDY and EARLE R. GILBERT, Partners under the Firm Name of JUDY & GILBERT, Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants

No. 23,503

Supreme Court of Kansas

April 8, 1922

Decided January, 1922

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Administrator Contracting with Himself for Attorneys' Fees--Fiduciary Relations--Violation of Trust. A contract for compensation to be paid by the administrator of an estate of a deceased person for services to be performed by the administrator and his partner as attorneys at law, in an action to be commenced by them to recover damages for the wrongful death of the deceased person, is in violation of the trust reposed in the administrator and cannot be enforced.

2. SAME--Contract for Contingent Attorneys' Fees--Contract Champertous and Unenforceable. A written contract between an attorney and his client that the attorney will prosecute an action for a fee contingent on the success of the litigation is rendered champertous and unenforceable by a collateral agreement that the attorney will protect the client against the payment of costs.

3. ATTORNEYS AT LAW--Conduct in Violation of Professional Ethics--Words of Censure by Supreme Court. Where attorneys at law are plaintiffs in an action, and they have acquired their rights to the subject matter of the action in violation of professional ethics, the court will not permit the conduct of the attorneys to pass without censure.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellants.

A. J. Herrod, and H. S. Roberts, both of Kansas City, for the appellees.

OPINION

MARSHALL, J.:

The defendants appeal from a judgment enforcing a lien for attorneys' fees claimed in an action commenced by the plaintiffs as attorneys for the administrator of the estate of Louis R. Holbrook, deceased, to recover damages for his wrongful death.

The plaintiffs are attorneys at law in Wyandotte county, duly admitted to practice law in this state. Earle R. Gilbert is also public administrator of Wyandotte county under chapter 199 of the Laws of 1903. Louis R. Holbrook, whose home was at West Plains, in Howell county, Missouri, was employed as a brakeman on the Atchison, Topeka & Santa Fe Railway and was killed while in that employ at Edgerton in Johnson county, on November 6, 1919. At that time, he had a place of residence in Kansas City, Kan., at which he had some of his personal effects. Earle R. Gilbert learned of the death of Louis R. Holbrook and went to Edgerton on November 7, 1919, to investigate the latter's death. In a letter dated November 7, 1919, plaintiff Lee Judy wrote to Sarah Holbrook, the mother of Louis R. Holbrook, at West Plains, Mo., and told her that Earle R. Gilbert was public administrator of Wyandotte county, and administrator of the estate of Louis R. Holbrook; that her son had been killed in a Santa Fe wreck; and that on the following day the plaintiffs would file a suit against the Santa Fe Railway for damages for the death of her son. On November 8, Earle R. Gilbert, on his application was, by the probate court of Wyandotte county, appointed administrator of the estate of Louis R. Holbrook, and on that day he contracted in writing with himself and Lee Judy, his partner, authorizing himself and Lee Judy to commence an action in the district court of Wyandotte county to recover damages for the death of Louis R. Holbrook, agreeing to pay to himself and Lee Judy fifty per cent of the amount recovered, and stipulating "that in the event that no sum shall be received from said defendants" no money should be paid to Earle R. Gilbert and Lee Judy for prosecuting the action. That action was commenced on November 8, 1919. On November 14, 1919, Sarah Holbrook went to the office of the plaintiffs where she signed a contract by which she authorized the plaintiffs to prosecute a claim for damages, agreed to pay them fifty per cent of the amount recovered, and stipulated that the plaintiffs should not receive compensation for their services in the event that nothing was received from the defendants. The mother testified that she did not want an action commenced, and did not know that she was signing a contract authorizing the plaintiffs to commence such an action. Subsequently, J. C. Holbrook, the father of Louis R. Holbrook, was appointed administrator of the estate of the latter in Howell county, Missouri, where Louis R. Holbrook had personal property. After the appointment of J. C. Holbrook as administrator, he came to the Santa Fe offices in Topeka and there for $ 1,500 settled the claim of the estate of Louis R. Holbrook for damages on account of his wrongful death. That sum was paid to J. C. Holbrook, as administrator. That settlement, and the payment of the $ 1,500, was pleaded by the defendants in the action commenced by the plaintiffs in Wyandotte county, and that action was dismissed. The present action was then commenced to recover $ 750 as attorneys' fees under the contract between Earle R. Gilbert as administrator and himself and Lee Judy as attorneys, under the contract between the plaintiffs and Sarah Holbrook, and under a notice of attorneys' lien that had been served on each of the defendants at the time the summons was served in the action for damages. A notice of attorneys' lien was filed in that action at the time it was commenced.

In the present action, each of the defendants demurred to the petition of the plaintiffs, and each demurrer was overruled. At the close of the introduction of the evidence by the plaintiffs, each of the defendants filed a demurrer to the evidence, and each of those demurrers was overruled. After the evidence had been introduced and the jury had been instructed and had...