Husk v. Blancand

• Court: Louisiana Supreme Court
• Writing for the Court: THOMPSON, J.
• Citation: Husk v. Blancand, 155 La. 816, 99 So. 610 (La. 1924)
• Decision Date: 17 March 1924
• Docket Number: 24395
• Parties: HUSK et al. v. BLANCAND

99 So. 610

155 La. 816

HUSK et al. v. BLANCAND

No. 24395

Supreme Court of Louisiana

March 17, 1924

Appeal from Civil District Court, Parish of Orleans; Porter Parker Judge.

Action by Mrs. Edna Thompson Husk and another against Gus Blancand. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Miller Miller & Fletchinger, of New Orleans, for appellants.

Spencer Gidiere, Phelps & Dunbar, of New Orleans, for appellee.

OPINION

THOMPSON, J.

On October 12, 1916, Charles R. Husk was killed in this city by a street car. The defendant was employed by the widow of the deceased to bring suit against the New Orleans Railway & Light Company in her behalf and on behalf of her minor son, issue of her marriage with the deceased, for damages for the death of the husband and father. The defendant employed two other attorneys, Messrs. Callan and Viosca, to assist him in the suit.

The suit was filed in the federal District Court, and, after a second trial (the first resulted in a mistrial), a verdict was rendered in plaintiffs' favor against the railway and light company for $ 15,000. This amount was reduced by agreement to $ 10,600, which was paid by the company to the defendant herein.

The defendant paid his two associates $ 1,744.40 each, and tendered Mrs. Husk, the widow, his check for $ 5,300, being 50 per cent. of the amount received in the compromise settlement of the judgment. The check was declined by Mrs. Husk for the reason that the amount retained by the attorney as his fee was in excess of the compensation due the attorney under the agreement as she understood it. The amount tendered by the attorney was subsequently accepted without prejudice to the plaintiff's right to sue for the balance which Mrs. Husk claimed was due her.

The present suit is brought by Mrs. Husk, individually and on behalf of her minor son, to recover of the attorney the sum of $ 3,180, the amount retained by the attorney over and above the fee which the plaintiff claims was to be charged.

The theory upon which the plaintiff bases her suit is that, while there was no definite contract as to the fee to be charged by the attorney, he led her to believe that as a friend of her husband he would handle the case on a fee basis not to exceed 20 per cent. of the amount recovered. She alleges that the amount charged by the defendant was excessive and contrary to the representations made to her by the defendant and upon the faith of which she acted when the employment was had, and that a fee of 20 per cent. would have been a fair, liberal, and ample payment for the services rendered by the defendant.

The defense is that prior to the institution of the suit for damages for the death of Husk a verbal agreement was entered into between the attorney and Mrs. Husk, acting individually and on behalf of her minor son, by which he was to charge no fee whatever in the event there was no recovery from the railway and light company, but in the event there was a recovery he was to receive a fee of 50 per cent. of the amount recovered. It is alleged that it has been for many years usual and customary among reputable members of the bar of the city of New Orleans to charge a fee of 50 per cent. of the amount recovered in suits for personal injuries, when the fee is contingent purely upon success, and particularly when recovery is had as a result of a judgment after a protracted trial.

After a trial in the court below a judgment was rendered rejecting the plaintiff's demand, and she has appealed.

It results from what has already been said that the primary question to be determined is whether there was a contract fixing a contingent fee at 50 per cent. of the amount recovered, as claimed by defendant, or at not exceeding 20 per cent. of the amount recovered, as contended by the plaintiff. Upon this question it must be confessed that the testimony is painfully conflicting. There can be no doubt, however, that the defendant was employed to bring the suit and that the suit was vigorously and expeditiously prosecuted to a successful termination by the defendant and his two associates.

At the only meeting in which the subject of the fee was discussed there were present Mrs. Husk; her husband's sister, Miss Flora Husk; and the defendant. Mrs. Husk testified that she asked the defendant to tell her, as near as he could, what the fee would be, and that he said he had worked for the boys at the brewery, where Mr. Husk was employed, at a very reasonable fee, and that he gave an illustration of a man who had gotten a judgment for $ 1,000 and that this man paid him $ 200 for his fee, and he felt that was reasonable, and led her to believe that his fee would not be more than 20 per cent.; that the defendant did not fix any definite amount except by way of illustration as already stated; that she made it a point and asked him twice to get him to express himself with regard to a fee and he seemed to evade the question; that there was no discussion whatever as to paying a fee, win or lose, and that she naturally expected to have the costs to pay and the fee of the attorney if no recovery was had.

Miss Flora Husk testified in substance: That her sister asked how much would be his fee, and the defendant said the usual fee was 50 per cent., but he always worked for the boys at the brewery for about what they could afford to pay, or what they were able to pay, and then he related an instance where he charged $ 200 or $ 300 for the recovery of $ 1,000; that she told her sister to ask him what the fee would be, but he would not state expressly what would be the amount; that he just got around it in that way, by saying that he charged these people $ 200 or $ 300 for this $ 1,000 case. This witness further stated that the impression she got from what was said at the meeting referred to was that the fee would be a third of the amount collected, considering that the amount the attorney had collected for those other men was a smaller amount than he collected for this plaintiff; that the attorney said to Mrs. Husk that she understood that, if there was no recovery, he got no fee.

It is very clear from the testimony of these two ladies that they each got a different impression from what was said at the meeting in which the subject of the fee was discussed. Mrs. Husk understood that the fee would not exceed 20 per cent. of the amount recovered and that if no recovery was had she was to pay the cost and the fee of the attorney, while Miss Husk's impression was that the fee might be a third of the amount collected and that Mrs. Husk understood that if there was no recovery she would have no attorney fees to pay.

The meeting at which the subject of the fee was discussed was brought about by a letter which Mrs. Husk received from her brother in which he suggested that she ought to find out what the costs of the suit would be and in which he admonished her that she should get an estimate in case she won and another in case she lost.

The defendant testified that Mrs. Husk and Miss Flora Husk came to his office and presented him a letter from Mrs. Husk's brother, in which...