Laughlin v. Excelsior Powder Manufacturing Co.
| Decision Date | 30 January 1911 |
| Citation | 134 S.W. 116,153 Mo.App. 508 |
| Parties | LOUIS A. LAUGHLIN and LOUIS S. KENWORTHY, Appellants, v. EXCELSIOR POWDER MANUFACTURING COMPANY and KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Herman Brumback, Judge.
Judgment affirmed.
B. D Davis for appellants.
(1) By filing the suit defendant powder company was charged with notice of the attorneys' lien on the cause of action. Taylor v. Railroad, 207 Mo. 495. (2) Any act of said defendant which destroyed the attorney's lien after it attached to the cause of action made said defendant liable to the attorneys in an independent action. Yonge v. Transit Co., 109 Mo.App. 235; Taylor v. Transit Co., 198 Mo. 715. (3) By pleading the release of the Kansas City Southern Railway Company as a bar to the further prosecution of the suit and thereby electing to avail itself of the provisions of that contract, the defendant powder company took the benefit conferred by the release cum onere. To use a homely phrase, it must take the bitter with the sweet. Every benefit is to be enjoyed cum onere. Mundorff v Wickersham, 63 Pa. 89, and cases cited.
Kinealy & Kinealy for respondents.
(1) No cause of action is stated in the petition because it does not allege any violation by defendant Powder Company of any right of the plaintiffs, and these are the essentials of a "cause of action." Litton v. Railroad, 111 Mo.App. 140. (2) The attorney's lien statute throws liability only on the defendant or proposed defendant who settles the client's cause of action. 1 R. S. 1909, sec 965. (3) Thomas, having accepted compensation for his injuries from the railroad company, the law conclusively presumes that it "occasioned the whole injury." Hubbard v. Railroad, 173 Mo. 249.
Plaintiffs, practicing lawyers in Kansas City, brought this suit under the provisions of section 965, Revised Statutes 1909, to recover an attorney's fee of the defendants, the Excelsior Powder Manufacturing Company and the Kansas City Southern Railway Company. The defendants separately demurred to the petition, both demurrers were sustained, and plaintiffs appealed.
Material facts alleged in the petition are as follows: A train porter employed by the defendant Railway Company was injured, while on duty, by an explosion of powder and, claiming that his injury was caused by the negligence of both defendants, employed plaintiffs to prosecute his cause of action. The contract of employment was in writing and by its terms plaintiffs were to receive as compensation for their services "fifty per cent of whatever amount said attorneys obtain in settlement of said claim either by suit or compromise." Further, it was agreed "that in case said first party (the client) shall settle or compromise said claim otherwise than through said attorneys, then said attorneys shall be entitled to a fee equal to that received by said first party, but said fee shall, in no event, be less than one hundred dollars."
Pursuant to this contract plaintiffs, on November 20, 1908, commenced a damage suit for their client in the circuit court of Jackson county against the defendant Powder Company alone and caused summons to be issued and served. In February, 1909, plaintiff "compromised and settled and released the cause of action upon which said suit was brought, and without the knowledge or consent of these plaintiffs, by receiving therefor the sum of sixty-five dollars from the said Kansas City Southern Railway Company." Afterward the Powder Company pleaded this release as a bar to the pending action and "such proceedings were had in said suit that it was dismissed because of said release." It is not claimed that notice of lien was served by plaintiffs on either of the present defendants.
The sole assignment of error in the brief of plaintiffs is that "the court erred in sustaining the separate demurrer of defendant, Excelsior Powder Manufacturing Company." Plaintiffs appear to have abandoned their demand against the Railway Company and we shall confine our inquiry to the only error assigned and discussed in the briefs.
The filing of suit against the Powder Company dispensed with the necessity of giving the notice of lien required by section 965, Revised Statutes 1909 (Taylor v. Railway, 207 Mo. 495), and we sanction the contention of plaintiffs that "any act of said defendant which destroyed the attorney's lien after it attached to the cause of action made said defendant liable to the attorneys in an independent action." [Yonge v. St. Louis Transit Co., 109 Mo.App. 235; Taylor v. Transit Co., 198 Mo 715, 97 S.W. 155; Curtis v. Railway, 118 Mo.App. 341.] But we do not accept as sound the further proposition that "by pleading the release of the Kansas City Southern Railway Company as a bar to the further prosecution of the suit and thereby electing to avail itself of the provisions of that contract, the defendant Powder Company took the benefit...
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