Howard v. McCarson

• Decision Date: 10 June 1926
• Docket Number: 6 Div. 302
• Citation: 215 Ala. 251,110 So. 296
• Parties: HOWARD et al. v. McCARSON.
• Court: Alabama Supreme Court

110 So. 296

215 Ala. 251

HOWARD et al. v. McCARSON.

6 Div. 302

Supreme Court of Alabama

June 10, 1926

Rehearing Denied Nov. 11, 1926

Appeal from Circuit Court, Jefferson County; S.F. Hobbs, Judge.

Action by Mrs. T.B. McCarson against W.E. Howard, C.L. Brewer, and S.E. Jones. From a judgment for plaintiff, defendants Howard and Brewer appeal. Reversed and remanded.

C.E Wilder and Frank Bainbridge, both of Birmingham, for appellants.

Bowers & Dixon, of Birmingham, for appellee.

SOMERVILLE J.

"When an attorney accepts a retainer to conduct a legal proceeding he enters into an entire contract to conduct the proceedings to a conclusion, and he may not abandon his relation without justifiable cause, or the consent of his client. If he does so, he forfeits all right to compensation, even for services already rendered, and renders himself liable to an action for damages resulting from his wrongful withdrawal and consequent neglect of the case; he may not abandon a cause at a critical stage, leaving his client helpless in the emergency." 6 Corp.Jur. 673, 674, § 186.

Assuming without deciding, that Howard's withdrawal from the conduct of plaintiff's case may have been an efficient factor in the proximate causation of the injury she complains of, his liability would depend upon the propriety vel non of his withdrawal without the personal knowledge and consent of the plaintiff, or of her alter ego, E.B. McCarson; and that question obviously depends upon the authority of Jones, real or ostensible, to dismiss or discharge Howard from further service and responsibility, under the circumstances shown.

The evidence shows that Jones was given a general authority to prosecute Mrs. McCarson's claim against the motor company, and to that end to agree upon the terms of settlement, and to select and employ an attorney, or attorneys, to serve as needed, and to supervise that service. Under that authority he selected and employed Howard, and introduced him to McCarson as his (Jones') attorney, and Jones and Howard were directed to carry on the suit. Under these circumstances we think that Jones' general authority was broad enough to authorize him to discharge Howard and to employ another attorney in his place, and that the appearance of authority given to Jones justified Howard in yielding to his authority and dealing with him as though he had the authority he was exercising in the premises.

Our conclusion is that the general affirmative charge should have been given for Howard, as requested, and its refusal was error.

Count A of the amended complaint, upon which the verdict of the jury was grounded, does not charge that any one of the three defendants was an attorney at law, nor does it charge that their undertaking "to collect and deliver to her money for damages" was a joint undertaking, or that there was any sort of association or relation between them. Again, it does not show which, if any, of the three defendants was the attorney of record in the proceeding resulting in a judgment for $2,250 for plaintiff; nor does it show which one of the three defendants collected the judgment money...