Gulf, C. & S. F. Ry. Co. v. Miller

• Decision Date: 14 October 1899
• Citation: 53 S.W. 709
• Parties: GULF, C. & S. F. RY. CO. v. MILLER.
• Court: Texas Court of Appeals

53 S.W. 709

GULF, C. & S. F. RY. CO. v. MILLER.

Court of Civil Appeals of Texas.

October 14, 1899.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by Henry Miller against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Terry, for appellant. J. F. Cooper and Robt. G. Johnson, for appellee.

HUNTER, J.

This suit was brought by the appellee, Henry Miller, against appellant, on the 5th day of August, 1898, in the district court of Tarrant county, to recover damages for alleged personal injuries inflicted upon the appellee in Bell county on the 14th day of June, 1898. On the 12th day of July following, the appellee entered into a contract in writing with J. B. McMahan, an attorney at law of Belton, Tex., in the following terms: "The State of Texas, County of Bell. Know all men by these presents, that I, Henry Miller, of Bell county, Texas, have employed J. B. McMahan, of said county and state, as my attorney to represent me and prosecute to settlement or judgment a certain claim I have and hold against the Gulf, Colorado & Santa Fé Railway Company, which said claim is for personal injuries received by me on the 14th day of June, 1898, by being struck by a bundle of grade stakes thrown from said company's cars by one of its employés. In consideration of the services already performed for me by the said J. B. McMahan, and the further service to be done in the collection, settlement, and prosecution of said cause in the courts of this state (if that shall become necessary), I therefore sell, grant, set over, and transfer to the said McMahan one-half of my entire claim against said company, whether the same is settled with or without suit; and, should it become necessary to sue, and judgment is obtained, then the said McMahan is to have one-half of any judgment that may be obtained by me against said company. It is further understood that the said McMahan has the entire control and management of my claim, and is authorized to settle in any manner he may think best; and I do hereby agree not to interfere in the matter in any way whatever, but leave the settlement and compromise of said claim entirely under the control and management of the said McMahan. I do hereby empower my said attorney to sign my name to all papers that may be necessary to be executed for the purpose of settling and compromising said claim, and to bring suit for me, and to prosecute the same to judgment; in fact to do any and all things that may become necessary to collect my said claim from the said railway company. And the said McMahan is specially empowered to release the said railway company in my name, and to fully discharge them from further liability, when the said McMahan has received the amount of money he and the said company may agree upon. I hereby ratify all things my said attorney may do in the premises. Witness my hand this 12th day of July, 1898. Henry Miller." Miller acknowledged the execution of this contract before a notary public on the same day it was executed, who certified the fact according to law, but it does not appear that it was ever filed among the papers of the suit afterwards brought by McMahan for Miller in the district court of Bell county for damages for the injuries therein named. Said Bell county suit was filed by McMahan, July 13, 1898, but Miller, it seems, personally appeared therein, and dismissed the cause, October 1, 1898. Two days after Miller executed the above contract to McMahan, he became dissatisfied with McMahan, and notified him that he revoked the contract, and discharged him; and afterwards he employed the attorneys who represent him in this case to take charge of his claim, and bring this suit, which they did, filing the suit as above stated. After the Ft. Worth attorneys were employed, the appellant, through its auditing and claim agents, made several efforts to compromise with Miller personally, but he declined to settle, referring them to his Ft. Worth attorneys; and on one occasion, it seems, he was informed that McMahan had brought a suit on the same cause of action in the district court of Bell county, whereupon he informed the agent that McMahan's authority had been revoked, and that he was discharged. After this, however, failing to settle with Miller, the appellant, through its claim agent, settled with McMahan the entire claim for $100, and took from him the following receipt and release: "$100.00. Belton, Texas, Sept. 12, 1898. Received of the Gulf, Colorado & Santa Fé Railway Company the sum of one hundred dollars, in consideration of...