Hale v. Terminal Railroad Ass'n

• Decision Date: 15 January 1929
• Docket Number: No. 20264.,20264.
• Parties: HALE v. TERMINAL RAILROAD ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

12 S.W.2d 941

HALE v. TERMINAL RAILROAD ASS'N OF ST. LOUIS.

No. 20264.

St. Louis Court of Appeals. Missouri.

January 15, 1929.

Rehearing Denied February 5, 1929.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by John E. Hale, administrator of the estate of Eugene Hale, deceased, against the Terminal Railroad Association of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

John E. Hale, of St. Louis, for appellant.

J. L. Howell, R. E. Blodgett, and A. M. Menzi, all of St. Louis, for respondent.

SUTTON, C.

The plaintiff, Eugene Hale, instituted this action before a justice of the peace in the city of St. Louis. There was a judgment before the justice in favor of the defendant from which judgment plaintiff appealed to the circuit court. In the circuit court plaintiff filed an amended statement. The cause was tried before the court, without a jury, and the trial resulted in a judgment for defendant, from which judgment plaintiff appealed to this court. The death of plaintiff having been suggested here, the cause has been revived in the name of his administrator.

The amended statement filed in the circuit court avers that Ezra Roberts employed plaintiff as his attorney to bring a suit for said Roberts against the defendant and others in the circuit court of the city of St. Louis for damages for blacklisting said Roberts; that said Roberts agreed by his contract in writing to pay plaintiff a contingent fee of 33 1/3 per cent. of all sums recovered in said action; that pursuant to said employment and agreement plaintiff instituted for said Roberts a suit in said circuit court; that the defendant entered into an agreement with said Roberts to settle said cause with him for the sum of $1,500 and to give him steady employment, and that said Roberts executed a stipulation for the dismissal of said cause; that the said cause was settled and dismissed without the consent or knowledge of the plaintiff herein; that upon the dismissal of said cause by said Roberts the defendant gave the said Roberts a position in its yards, and that the said Roberts is still employed by the defendant; that neither the said Roberts nor the defendant have ever paid plaintiff anything for his services rendered to the said Roberts in the matter; that plaintiff has been damaged in the sum of $500; and prays judgment in the sum of $500, with interest, and for costs.

Plaintiff testified at the trial that he was an attorney at law and had practiced law in the courts of the state of Missouri since 1900; that some time in January, 1923, he was employed by Ezra Roberts to file and prosecute for said Roberts a suit against defendant and others for blacklisting said Roberts; that he filed suit for said Roberts in the circuit court of the city of St. Louis; that he had a contract in writing with said Roberts for a contingent fee of one-third of any amount recovered, and served notice thereof in writing on the defendant; that he did not know anything about the dismissal of said cause until October 18, 1923, when he received a letter from defendant's general attorney inclosing a stipulation for dismissal of said cause; that this letter was the first notice he had of any settlement of said cause; that he never signed the stipulation for dismissal of said cause, never filed said stipulation, and never authorized any one to file it; that he called the general attorney by telephone and told him that he would not sign the stipulation or file it until he was paid a fee.

The letter received by plaintiff from defendant's general attorney is as follows:

"I am enclosing herewith stipulation for dismissal in the Roberts case. After our last conversation I talked with the General Manager and he said he would help Roberts secure a job, and upon my return here he told me that Roberts had called and said the suit was dismissed and he would like for him to help him get a job. The General Manager, after talking with Roberts a while, decided to re-employ him, and thereupon gave him an order to go back to work, and as I understand, Roberts is now working. Of course, Roberts should not have been put back to work until the suit was dismissed, but, knowing you as I do, I told the General Manager to let him continue and you and I would arrange for a dismissal of the case. We are agreeing to pay the costs on account of our friendship for you and would suggest that you arrange with Roberts to either pay you so much a month out of his wages for your fee, or permit us to deduct it through our paymaster.

"Please sign dismissal in duplicate, retain one copy for your file and return to me the other for filing."

The stipulation for dismissal inclosed with said letter, which stipulation was signed by Ezra Roberts and defendant's general attorney, is as follows:

"It is hereby stipulated and agreed by and between the plaintiff and defendant in the above entitled cause that said suit shall be dismissed at the cost of the defendant, Wiggins Ferry Company."

Defendant's general attorney testified that he was...