Kimmie v. Terminal Railroad Assn.

• Decision Date: 01 April 1939
• Docket Number: No. 36038.,36038.
• Court: Missouri Supreme Court
• Parties: GEORGE KIMMIE, Respondent, v. THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant, CHARLES P. NOELL, Claimant-Appellant.

126 S.W.2d 1197

GEORGE KIMMIE, Respondent, v. THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant, CHARLES P. NOELL, Claimant-Appellant.

No. 36038.

Supreme Court of Missouri.

Division One, April 1, 1939.

Appeal from Circuit Court of City of St. Louis. — Hon. Ernest F. Oakley, Judge.

AFFIRMED.

Lee, Fricke & Lee for appellant.

(1) After the consent judgment and the deposit of the money in court the situation was substantially that of an interpleader suit after the entry of a decree for interpleader and the dismissal of the stakeholder, with the issues as between the conflicting claimants (client and attorney) limited by stipulation to the determination of the amount "justly due" from one to the other, the question to be decided according to the equities of the claimants as between themselves, without regard to legal technicalities. McGowan v. Parish, 237 U.S. 297; Lindsay v. Hotchkiss, 195 Mo. App. 563, 193 S.W. 905; Wylie v. Cox, 15 How. 415, 14 L. Ed. 753. Where the client is insolvent, and if permitted to receive the fund would immediately remove the same with the purpose of defeating the attorney's claim for fees and considerable sums advanced to her father and herself for living expenses and support, attorney should be allowed his fee and disbursements. Byram v. Miner, 47 Fed. (2d) 120; Sec. 11716, R.S. 1929. (2) The rights of the parties and the methods of enforcing the claim and lien, if any, must be determined by the particular facts of each case. Young v. Levine, 326 Mo. 593; State ex rel. Anderson v. Roehrig, 320 Mo. 870, 85 S.W. (2d) 998; Wait v. Atchison, T. & S. Fe Ry. Co., 204 Mo. 491. (3) The claim of the attorney is for equitable consideration, and he should recover to the extent of the services rendered and disbursements, being regarded as an equitable assignee of the judgment. 6 C.J., pp. 657, 734, 766, secs. 169, 307, 364; Shuck v. Pfenninghausen, 101 Mo. App. 697; Young v. Landznar, 133 Mo. App. 130; Tyrrell v. Milliken, 135 Mo. App. 293; Thornton on Attorneys at Law, pp. 351, 461; 2 R.C.L. 939. (4) Whether or not the contract furnishes the standard for compensation, the allowance should be for all fair and reasonable amounts justly due, under all facts and circumstances. Morton v. Forsee, 249 Mo. 409; In re Montgomery's Estate, 290 N.Y. Supp. 556, 6 N.E. 40. (5) A party is not barred from relief in equity because of conduct not connected with the particular matter or transaction in respect to which judicial protection or redress is sought. 21 C.J., p. 187, sec. 173; Wertheimer-Swartz Shoe Co. v. Wyble, 261 Mo. 675; Schroeder v. Turpin, 253 Mo. 258; Stegeman v. Weeke, 214 S.W. 134; Williams v. Beatty, 139 Mo. App. 167, 122 S.W. 323.

Wayne Ely, Wm. O'Herin and Leahy, Walther, Hecker & Ely for respondent.

(1) Claimant, Charles P. Noell, cannot in this proceeding assert a claim for moneys advanced to and on behalf of George Kimmie, or other expenses incurred, for the reason that the issue in this case is restricted to the determination of what lien, if any, he had for compensation for his services. 1 Mo. Stat. Ann., chap. 78, sec. 11716, p. 63. (2) Performance of a contract is excused where it is prevented by the acts of the opposite party or is rendered impossible by him. Kreitz v. Egelhoff, 231 Mo. 694; Helm v. Wilson, 4 Mo. 41; Laswell v. Natl. Co., 147 Mo. App. 497; Holden v. Lyons, 175 Mo. App. 165. (3) If an attorney without just cause abandons his client or wrongfully refuses to perform his contract of employment before the proceeding for which he was retained generally has been conducted to its termination he forfeits all right to payment for any services which he has rendered. Taylor v. Perkins, 183 Mo. App. 204; Dempsey v. Dorrance, 151 Mo. App. 429; Young v. Lanznar, 133 Mo. App. 138; Blanton v. King, 73 Mo. App. 148. (4) Disbarment or suspension from practice of a lawyer annuls any existing contracts of employment and is equivalent to a willful abandonment or wrongful refusal to perform said contract, and such an attorney forfeits all right to any compensation by reason of his employment. Corson v. Lewis, 109 N.W. 735; In re Woodworth, 85 Fed. (2d) 50; Egan v. Waggoner, 41 S.D. 239, 170 N.W. 142; Davenport v. Waggoner, 49 S.D. 592, 207 N.W. 972, 45 A.L.R. 1126.

GANTT, J.

Action for attorney fee. On October 9, 1929, George Kimmie was injured while in the service of the Terminal Railroad Association. On December 19, 1929, he employed attorney Charles P. Noell to prosecute his claim for damages against the railroad company. The written contract of employment fixed said attorney's fee at forty per cent of the amount collected by suit or otherwise. In other words, it was a contingent fee contract.

On January 14, 1930, Mr. Noell filed suit against the company, alleging that Kimmie was injured as a result of the negligence of the company. On a trial of the case Kimmie had judgment for $20,000, which was reversed and the cause remanded by this court. [Kimmie v. Railroad Assn., 334 Mo. 596, 66 S.W. (2d) 561.] On a second trial Kimmie had judgment for $60,000, which was reduced by remittitur in the trial court to $35,000. On November 12, 1935, the judgment for $35,000 also was reversed and the cause remanded for another trial. [Kimmie v. Railroad Assn., 337 Mo. 1245, 88 S.W. (2d) 884.]

On February 7, 1935, the Grievance Committee of the Bar Association of St. Louis filed, in the St. Louis Court of Appeals, a petition for the disbarment of Mr. Noell. On June 5, 1935, the court appointed a special commissioner to hear the evidence and report finding of facts and conclusions of law. The commissioner made report as directed. The Court of Appeals adopted as its opinion said report and entered judgment suspending Mr. Noell from the practice of law for two years from June 30, 1936. [In re Noell, 96 S.W. (2d) 213.]

Although under suspension Mr. Noell was in conference with Kimmie and the attorney for the company in July, 1936, with reference to a settlement of the case. The negotiations continued for a number of days. Even so, the effort to settle was unsuccessful. In this situation and on September 10, 1936, Kimmie called the attention of Mr. Noell to the judgment of the Court of Appeals suspending him from the practice of law, and also called his attention to the fact that he could not, during the suspension, represent him as attorney. He then engaged the services of another attorney. Thereafter negotiations for a settlement were renewed. Finally, and with the consent of Kimmie, the case was settled for $15,000.

On January 25, 1937, and with the consent of Kimmie and the company, judgment was entered in the circuit court as follows:

"Judgment by consent between plaintiff and defendant in sum of $15,000, said sum to be paid to the Clerk of the Circuit Court, City of St. Louis. Satisfaction of judgment acknowledged in open court by plaintiff. As Charles P. Noell has heretofore acted as attorney for plaintiff, said sum of $15,000 is to be paid to the Clerk of the Circuit Court of the City of St. Louis, so that it may be determined by the Court what lien, if any, the said Charles P. Noell has in and against said fund for alleged attorney's fees. It is hereby ordered that notice be given to the said Charles P. Noell by the Sheriff of the City of St. Louis and the Sheriff of St. Louis County, Mo., and that the said Charles P. Noell be directed to come into court within ten days from the service of said notice upon him or upon any member of his said family at his home upon whom lawful service can be obtained, and assert and have the Court determine what lien he has, if any, in or to the distribution of said fund on account of an alleged attorney's lien."

[1] Under this judgment Mr. Noell pleaded in two counts for an attorney fee. The first count was on the contract for forty per cent of the amount collected by suit or otherwise. The second count was on quantum meruit. In the motion for a new trial Mr. Noell presented certain constitutional questions. The said questions are not mentioned in Mr. Noell's brief and must be considered abandoned. However, on the trial there was evidence under the second count tending to show that the value of his services as attorney was in excess of $7500. For this reason we have appellate jurisdiction.

In this connection it should be stated that certain physicians petitioned in the cause for allowance of claims for services rendered in connection with the trials of the case. The petitions were denied. The physicians filed motions for a new trial, which were overruled. The ruling of the court on the question is not for review, for they did not appeal.

It also should be stated that during the trial Mr. Noell asked leave to amend both counts of the claim to include money advanced by him to and on behalf of Kimmie. The court refused to permit the amendment.

At the close of all the evidence and in due course, the court found in favor of Kimmie and denied the claim of Mr. Noell for an attorney's fee under both counts. Claimant Noell appealed.

[2] I. Claimant presents four assignments of error. Assignments Nos. 1, 2 and 4 are directed at the refusal of the court to permit claimant to amend both counts of his claim to include advancements of money to Kimmie pending the litigation, and to include the payment of expenses by claimant incident to the litigation.

We think the court correctly ruled the question. The rights of claimant, if any, must be determined under Section 11716, Revised Statutes 1929, which follows:

"The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds...