Hayes v. Sheffield Ice Co.
| Citation | 168 S.W. 294 |
| Decision Date | 13 June 1914 |
| Docket Number | 10970 |
| Parties | HAYES v. SHEFFIELD ICE CO. |
| Court | Court of Appeals of Kansas |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by Guy Hayes against the Sheffield Ice Company. Judgment for plaintiff, and defendant appeals, and, before submission on appeal, plaintiff moves to set aside a written settlement and release of judgment and a stipulation for the dismissal of the appeal. Cause transferred to the Supreme Court.
Pierre R. Porter, of Kansas City, for appellant.
Atwood & Hill, of Kansas City, for respondent.
Plaintiff lived at Bean Lake, 40 miles from Kansas City and was in the employ of the defendant as a laborer, and assisted in tearing down and removing an old frame building at that place. He was injured in that service, and, charging his injury to have been caused by defendant’s negligence, he brought an action for damages, and on the 14th day of October, 1912, recovered judgment in the circuit court of Jackson county for $4,000. Defendant in due time appealed the case to this court; the transcript being filed here on the 12th of February, 1913. At the date of the institution of the action he was not yet of age, and his father, J. H. Hayes acted as "next friend."
On the 8th of September, 1913, plaintiff, having become of age, entered into a written compromise settlement with defendant whereby for $500 he agreed to acknowledge satisfaction of the judgment, and on the same day he entered satisfaction of such judgment on the records of the circuit court, wherein it was rendered, and received said sum of money.
It appears that Atwood & Hill, a firm of attorneys in Kansas City, Mo., were employed by plaintiff to prosecute his action, which resulted in the judgment aforesaid, and that he agreed to pay them for their services a conditional fee, viz., "a sum equal to 50 per cent. of whatever amount may be collected by suit, compromise, or otherwise." These attorneys, on the 2d of October, 1913, being duly authorized by plaintiff, filed a motion in this court to set aside the release and the satisfaction of the judgment on the ground of fraud and deception alleged to have been practiced upon plaintiff. Thereafter, on the 6th of October, 1913, defendant filed in this court the stipulation, signed by plaintiff and it, that the appeal should be dismissed. No action has yet been taken by this court on that motion.
The motion to set aside the release and satisfaction of judgment called new attorneys into the case; Messrs. Park & Brown representing plaintiff, and Mr. Bowersock the defendant. It involved the hearing of evidence, and by agreement of parties the cause was referred to Stewart Taylor, Esq., of the Kansas City bar, for the purpose of taking the testimony and reporting to this court. That service has been performed by Mr. Taylor with the assistance of those attorneys, and the latter have argued the motion before us.
It appears that Pierre Porter was attorney for the defendant in the trial of the cause and subsequently, and that the principal negotiation leading up to the compromise settlement was had between him and plaintiff personally, though Mr. Hill, one of plaintiff’s attorneys, figures in it somewhat prominently, especially at the close. The charge of fraud and deception is made against Mr. Porter. The gravity of such charge and its results upon him, together with the alleged imposition upon plaintiff, have caused us to examine the evidence with care, and to form our conclusions upon careful considerations.
The principal ground asserted to support the charge of fraud is that plaintiff, being guileless and ignorant, was overreached and deceived by Porter, in that he told him he was confident that his judgment would not stand the test of the appeal in the appellate court, and that Atwood & Hill wanted to settle it, and that they knew of his offer of $500 in settlement, and were willing that it should be made for that sum; they receiving a like amount under the contract for their conditional fee.
Porter’s testimony was that on May 29, 1913 (more than seven months after the date of the judgment), plaintiff came to his office in Kansas City, of his own accord, and asked if the case could not be settled, and that he told him he did not think his case "would stand in the appellate court," but that he (Porter) would pay him what it would cost defendant to go through with the appeal, and named $250. This plaintiff refused, saying that he would take $500. Plaintiff agreed to come again on the 31st. In the meantime Porter obtained authority to settle; but plaintiff did not come back, nor did Porter see or communicate with him again until the 25th of August, when he came in with his brother-in-law, stating that the day previous was his birthday, and that he could now settle and would do so for the $500 he had offered to take in May. Porter still doubted whether he was yet of age, and wanted his father as his "next friend" in the case to come. Plaintiff thought it would be difficult to get his father to do so. They separated with the understanding that Porter would ask defendant if it would risk plaintiff’s age and settle without the father. Then on the 30th of August, after getting advice from defendant to settle, Porter wrote plaintiff to come down the following Tuesday, September 2d; but he did not come. Then after a few days plaintiff telephoned, asking if a settlement could be had if he would come down, and Porter told him to come Monday. On that day, which was the 8th of September, plaintiff again came into Porter’s office and stated his readiness to settle. Porter again preferred to have something from his parents in the way of an affidavit as to his age; but they settled. Just at this time Mr. Hill called Porter on the phone, stating, "I hear you are trying to settle the Hayes case." Porter answered, "I don’t know about that; he has been in here, of his own accord, several times; he has been in here, and, if I am able to get together with him, I am going to settle." Hill then spoke of the "ethical feature" of the matter in settling without his consent; when Porter said he was willing to settle with him if he could do so as cheaply, but at any rate whatever settlement was made he would see that Hill got his fee, which the latter said was 50 per cent. He asked Porter if a settlement had already been made, and the latter said there had not. He then asked if Porter expected to see plaintiff again, and Porter said yes. He then said, "When he [plaintiff] comes in, have him call me." Porter then turned to plaintiff and said, Plaintiff asked if Hill could prevent his settling, and Porter told him he could not, when plaintiff said, "Well, I want my money." The release paper and the agreement to dismiss the appeal were then signed, and Porter and plaintiff went to the courthouse to enter satisfaction of the judgment on the record. The clerk of the circuit court asked Porter if Atwood & Hill knew of the settlement, stating that he "liked to take care of the attorneys"; when Porter answered, "Yes, I realize that; but I told Mr. Hill, and that I would take care of his fees." The clerk had suggested that Porter call Hill on the phone, which Porter attempted, but only found an assistant at the office, and he told him "to get Hill and tell him to come to the courthouse, that I was settling the Hayes case."
It seems that, when Hill ceased his telephone conversation with Porter, he immediately started for the latter’s office, which was near by, getting there a few moments after Porter and plaintiff left, and, on being told that they had gone to the courthouse, he went on to that place, arriving there just after plaintiff had signed the satisfaction of the judgment. Realizing what had taken place, he became very angry, refused to confer with Porter, though offensive words passed. Hill wanted to know of Porter why he had not told him plaintiff was in his office in their talk "when he was sitting there at the time." Porter replied, "You never asked me." Hill had two talks with plaintiff, one in the clerk’s office, and the other, which was somewhat extended, out in the hall. After these interviews, Porter offered to plaintiff to allow him to throw up the settlement if he desired, but, if he wanted the money, to come with him to the bank. The latter wanted the money, and he and Porter left together for the bank, where he was paid.
Plaintiff’s testimony was that, instead of him first soliciting a compromise, Porter wrote to him while he was at Leona, Kan., where he was working for one Ukena, offering $2,000, and that, if he would come to Kansas City, "they would make a settlement with Mr. Hill, and, if I would bring my father and mother, to come down there, and they would give $1,000 for me and $1,000 for Mr. Hill." He testified that he then called Mr. Hill over the long-distance phone, and Hill told him he had not made such an offer. He did not answer Porter, and had lost the latter’s letter. Afterwards, about the last of July, he was in Kansas City, saw his lawyers; they "didn’t talk much about a settlement," but did about a hunting trip. While on the street, a few moments after leaving his lawyers, he met Porter, when the latter said to him that he "and Mr. Hill had come to a contract to settle my case up for $500 apiece, and that I could come to the office if I wanted to and talk the matter over." He told Porter that he "would do it if Mr. Hill was willing to settle the case." He stayed all night with his brother-in-law, and next day both came to Porter’s office, and again said he was...
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