Lamar Hardwood Co. v. Case

• Decision Date: 19 April 1926
• Docket Number: 25658
• Citation: 107 So. 868,143 Miss. 277
• Court: Mississippi Supreme Court
• Parties: LAMAR HARDWOOD CO. v. CASE. [*]

107 So. 868

143 Miss. 277

LAMAR HARDWOOD CO. v. CASE. ^[*]

No. 25658

Supreme Court of Mississippi

April 19, 1926

Division B

1. ATTORNEY AND CLIENT. Attorney, contracting for contingent fee, and taking assignment of portion of right of action, is not deprived of right of action thereon because third party without his knowledge, authority, or connivance, promised benefits to client for placing cause of action with such attorney, if such promise was not disclosed at or before time of making contract (Code 1906, sections 216, 231 [Hemingway's Code, sections 190, 208]).

An attorney who makes a contract with a client for a contingent fee, taking an assignment of a portion of the right of action as his fee, is not deprived of his right of action thereon by the fact that a third party made promises of benefits to the client, if the client would place his cause of action with said attorney for suit thereon, if the attorney did not know of said promises and did not authorize such party to solicit the employment, and did not in any manner connive with such person, and such promise was not disclosed at the time of the making of the contract or prior thereto.

2 TRIAL. Instruction that if contingent fee contract was procured by attorney's solicitation, either personally or through agent, recovery could not be had thereon whether promises were held out to client or not, was sufficient, and refusal of other instructions with reference to such agreement was not reversible error (Code 1906 sections 216, 231 [Hemingway's Code, sections 190, 208]).

Where an attorney brings a suit against a person or corporation for personal injury to his client, a part interest in the cause of action constituting his fee, and the defense is that the contract assigning such interest was solicited by the attorney or his agent in violation of clause (6), section 190, Hemingway's Code (section 216, Code of 1906), and section 208, Hemingway's Code (section 231, Code of 1906), and the court gives the following instruction for the defendant:

"The court instructs the jury for the defendant that, if the contract In question was procured by the plaintiff's solicitation, either personally or through an agent, then it is void, and recovery cannot be had thereon, and this is true whether any promises were held out to said Stallings or not."

This court will not reverse for not giving other instructions with reference to such agreement, as this instruction sufficiently announced the law applicable to the case.

3. ATTORNEY AND CLIENT. Settlement for injury with notice of contingent fee contract with attorney for share of recovery does not affect attorney's right to recover on his assignment of part of cause of action.

Where a person, injured by the negligence of another, assigns a part of his cause of action to his attorney in payment for the services of the attorney, and the person or corporation causing the injury has notice thereof, and after such notice of such assignment settles the cause with the injured party without consulting the attorney, such settlement does not affect the right of the attorney to recover on his part of the cause of action covered by the assignment.

4. TRIAL. All instructions are to be construed as whole, one as modifying, explaining, or qualifying another; if instructions as whole correctly announce applicable law, imperfection in single instruction will not warrant reversal.

All instructions given by the court in a suit being tried are to be considered together and construed as a whole, one as modifying, explaining, or qualifying another; and, if the instructions taken as a wholly correctly announce the law applicable to the case, this court will not reverse the judgment because of an imperfection in a single instruction.

5. APPEAL AND ERROR. Supreme Court will not revise discretion of trial court as to controlling argument of counsel, as to division of time between attorneys appearing on same side, or with reference to opening and closing case, in absence of showing that court's action was prejudicial to complaining party, and such prejudice must appear from record in case.

This court will not undertake to revise the discretion of the trial court in the matter of controlling the argument of counsel as to the division of time between attorneys appearing on the same side, nor with reference to opening and closing the case, in the absence of a showing that the court's action was prejudicial to the right of the complaining party, and such prejudice must appear from the record in the case.

HON. R M. BOURDEAUX, Judge.

APPEAL from circuit court of Clarke county, HON. R. M. BOURDEAUX, Judge.

Action by H. F. Case against the Lamar Hardwood Company to recover by the client on a contingent fee contract with plaintiff's client, of which defendant had notice at the time of settling action. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Stevens & Heidelberg, for appellant.

As will be seen from the statement of facts, there were two things sharply at issue: (1) Whether Dr. W. C. Norris, claiming to act as agent of H. F. Case, came to Stallings' home and there solicited the case and made the promises set forth; and (2) whether admitting that Norris did do the things outlined, he was authorized by Case to do this and was, therefore, the agent of Case in so doing.

With this state of facts, the defendant asked for the following instruction: "The court further instructs you for the defendant that if you believe from the evidence that Stallings was induced to sign the contract in this cause by one Dr. Norris claiming to represent the plaintiff, soliciting same and promising him that if he would execute the contract and employ the plaintiff that he would be taken care of pending the litigation and furnished with medical attention by the plaintiff, and but for the representations and promises Stallings would not have executed same, then said contract was void and the plaintiff cannot recover thereon." This instruction was refused by the court.

The following instruction was also asked and refused: "The court instructs the jury that if you believe from the evidence that the contract in this case was procured through solicitation and the said Stallings induced to sign it by reason of promises held out to him by Dr. Norris, then in law it is void and of no effect even though the plaintiff himself did not authorize Dr. Norris to solicit the employment for him nor to offer any promises."

It is against public policy for anyone to stir up strife and litigation. It is against public policy regardless of any statute on the subject. Certainly, it is true that the public policy of this state will not permit anyone to go to the extent of offering promises, rewards, money or other valuable consideration for the purpose of inducing another to begin litigation. If an attorney himself were to do it, he would not only be subject to disbarment, but would also be guilty of a misdemeanor.

If it is against public policy for one to go out and solicit lawsuits for an attorney and hold out promises and solicitations to the solicited party, then it is bound to follow that a contract signed by such solicited party under such circumstances and because of such inducement is utterly null and void even though the attorney himself did not participate in the solicitation nor offer the reward offered.

In order for the plaintiff to have recovered in this case, it was necessary for him to prove first an original liability on the part of the appellant to Stallings; and, second, a valid contract assigning an interest in the cause of action to him.

It will be noted that the two instructions on a safe place to work leave out of consideration altogether the invalidity of the contract in question. True it is that the plaintiff procured another instruction which told the jury that all of the instructions must be construed together, and that unless the plaintiff's contract was legal, he could not recover, but we submit that this instruction did not cure the error of these two instructions.

Another assignment of error which we desire to submit is shown by the special bill of exceptions. The court limited the time for argument of this case to one hour and a half to the side. When this division was made the plaintiff's attorneys announced in open court that they would use only thirty minutes in the opening argument and save one hour for the concluding argument, and thereupon the defendant immediately objected and insisted that at least one-half the time allowed should be used in the opening argument. This objection was overruled by the court.

The court should bear in mind that a closing argument, as has been held by this court, is merely for the purpose of answering the argument on the other side. If this case needed but thirty-seven minutes for an opening presentation thereof, certainly it did not need fifty-three minutes to answer the argument. Only one argument had been made for the defendant.

This court should take this occasion to point out again to the circuit judges of this state that the sole and only purpose of a closing argument is to reply to the arguments advanced on the other side, in order that the circuit judges will in the future prohibit attorneys representing the plaintiff from taking such an unfair division of time and obtaining such an unfair advantage as was obtained in this case.

Martin Miller, M. W. Reilly, Wm. Edwards, J. D. Fatheree and H. L. Miller, for appellee.

I. We admit that counsel is correct that it is against the policy of the state for one to stir up strife and litigation, but it is not against the public policy of this state, nor any other state, for a doctor to advise a friend that it is...