Keels v. Powell

• Decision Date: 11 June 1945
• Docket Number: 15744.
• Citation: 34 S.E.2d 482,207 S.C. 97
• Parties: KEELS v. POWELL et al.
• Court: South Carolina Supreme Court

34 S.E.2d 482

207 S.C. 97

KEELS v. POWELL et al.

No. 15744.

Supreme Court of South Carolina

June 11, 1945

Appeal from County Court, Florence County; R. W. Sharkey Judge.

Action by George W. Keels against L. R. Powell, Jr., and another receivers of the Seaboard Air Line Railway Company, a corporation, for plaintiff's contingent attorney's fee under a contract with plaintiff's client, wherein defendants filed a demurrer to the complaint. From an order overruling the demurrer, defendants appeal.

The opinion of Judge Sharkey follows:

Stated in substance, the allegations of the complaint in this case are that on January 1, 1941, one Willie Matthews, while passing over a crossing of the Seaboard Air Line Railway Company in Florence County, received serious and permanent injuries; that Matthews thereafter retained plaintiff to institute an action against the receivers of the Railway Company for the purpose of recovering a monetary judgment for said personal injuries, or of bringing about an amicable adjustment of Matthews' claim against the receivers; that under the terms of his contract with Matthews, plaintiff was to receive 33 1/3 per cent. of any settlement obtained or judgment recovered; that on January 22, 1941, plaintiff notified the claims agent of the receivers of his retention by Matthews for the aforesaid purposes, and invited a conference with the claims agent with a view of bringing about an amicable adjustment of the matter; that on January 25, 1941, the said claims agent notified plaintiff of the receipt of said communication, indicating that he would confer with plaintiff during the following week; that upon later contacting the claims agent plaintiff was informed that a settlement of the differences between Matthews and the receivers had been consummated; plaintiff then alleges that the action of the receivers, after notice of the existence of the contract between plaintiff and Matthews constituted a willful and fraudulent scheme to prevent plaintiff from collecting his fee under the said contract. It is further alleged that the sum paid Matthews by the receivers was $2,500 and that plaintiff has been damaged in the sum of $833.33. Judgment is demanded for that amount.

The sufficiency of the complaint has been challenged by demurrer on behalf of the defendants, on the ground 'that it does not state facts sufficient to constitute a cause of action in that it appears upon the face thereof that the plaintiff is not suing on the alleged contract with his client, that it is executory and does not undertake to give plaintiff any legal or equitable interest in the alleged cause of action, which is not assignable.'

In their argument to sustain the demurrer defendants rely upon the case of Perry v. Atlantic Coast Life Ins. Co., 166 S.C. 270, 164 S.E. 753, 754. I have considered the cited case very carefully, and find that there is considerable factual similarity between it and the case at bar. I note also that the demurrer now before the Court points directly to the legal principle which was raised in and decided by the Perry case. In that case a demurrer to the complaint was sustained by the trial Court, upon the grounds that: 'The plaintiff is not suing on the contract with his client, but seeks damages from the defendants jointly on the ground that by their joint tortious combination and agreement, the defendants jointly have injured plaintiff by preventing his receiving the compensation contemplated in his contract with his client. The contract of retainer between the plaintiff and his client, Burch, stated in the fourth paragraph of the complaint, is executory merely, and does not undertake to give plaintiff any legal or equitable interest in the cause of action for slander prior to reduction to judgment. * * * a cause of action for slander is, until reduced to judgment, a tort of a strictly personal character, and...