Meunier v. Bernich

• Decision Date: 16 November 1936
• Docket Number: 16490
• Citation: 170 So. 567
• Court: Court of Appeal of Louisiana — District of US
• Parties: MEUNIER v. BERNICH et al. (BALDWIN, Intervener)

170 So. 567

MEUNIER v. BERNICH et al. (BALDWIN, Intervener)

No. 16490

Court of Appeal of Louisiana, Orleans.

November 16, 1936

Rehearing denied Dec. 14, 1936.

Sydney J. Parlongue, of New Orleans, for defendants-appellants.

Cuthbert S. Baldwin, of New Orleans, for intervener-appellant.

J. A Woodville, of New Orleans, for appellee.

OPINION

McCALEB Judge.

Christian J. Meunier is a claim adjuster. He conducts his business in the city of New Orleans.

On October 1, 1932, the minor child of Mr. and Mrs. Bernich was killed by a dynamite torch, commonly known as a "fusee," belonging to the New Orleans Terminal Company and used by it as a signal device in the operation of its business. Shortly after the death of the child, the said Meunier, in pursuance of his business as a claim adjuster, called upon Mr. and Mrs. Bernich, soliciting employment as their agent for the purpose of investigating, compromising or settling whatever claim they had against the party responsible for the child's death. Soon after Meunier's solicitation of business, a written contract was entered into between Mr. and Mrs. Bernich and himself whereby Meunier was employed by the Bernichs as their agent and adjuster to investigate, adjust, settle, or compromise their claim.

In order that the nature and terms of Meunier's employment may be readily understood, we quote the entire contract between the parties, which reads as follows:

"Be it known, That, the undersigned Mr. and Mrs. John A. Bernich hereby employ Christian J. Meunier, Adjuster, as Adjuster and Authorized Agent, to investigate accident wherein undersigned's minor daughter, Lotus Ann Bernich, age 2 years, was fatally injured by having been burned with a signal flare under the house at the home of undersigned at 5631 Charles Place, New Orleans, La., on October 1st, 1932 at about 6:00 P. M.; and, to enforce, secure, settle, adjust or compromise whatever claim or claims the undersigned may have arising from said fatal accident to their minor daughter Lotus Ann Bernich against the Southern Railway System, or New Orleans Great Northern Railroad or any person, firm or corporation responsible therefor; and that

"For and in consideration of the services to be rendered herein by the said Christian J. Meunier, Adjuster and in order to secure the said obligation, the undersigned does hereby assign, set over and deliver unto the said Christian J. Meunier, Adjuster a vested 331/3% interest in said claim or claims. In event adjustment is not made and it becomes necessary for an attorney-at-law or attorneys-at-law to be employed to file suit in the premises this assignment shall then and there be automatically reduced to 25% for services in investigating and preparing the case for said handling by the said attorney or attorneys; and, it shall then and there become the duty of the said Christian J. Meunier, Adjuster to recommend whatever attorney or attorneys he may deem best fitted to successfully prosecute said suit, it not being imperative that the undersigned accept said recommendation. And, in no event, should the case be forced into suit, shall there be any greater cost to the undersigned in the handling of this case, including investigation, adjustment and trial of the case in suit, than 50% of the amount collected it being the duty of the said Christian J. Meunier, Adjuster to recommend such attorney or attorneys who shall be willing to try the case to conclusion in all courts for not more than 25% interest in whatever amount is collected, and the duty of the said Christian J. Meunier, Adjuster to assist the said attorney or attorneys in the undersigneds' behalf in whatever investigation is necessary to a successful winning of the case."

"The said Christian J. Meunier, Adjuster has specifically held out to the undersigned that he is no lawyer, and is not to in any way engage in the practice of law in the performance of said duties; it being agreed the said case is now entirely in his hands for attention in the undersigned's behalf; and, the case shall not be compromised or discontinued without the consent of the said Christian J. Meunier, Adjuster.

"Done and signed this the 5th day of October, 1932, at the city of New Orleans, Louisiana.

"Signed John A. Bernich

"Father of Lotus Ann Bernich

"Signed Mrs. John A. Bernich

"Mother of Lotus Ann Bernich.

"Witnesses:

(10)6D

(10)6D

"The above assignment of interest and contract of employment accepted, in New Orleans, Louisiana this the 5th day of October, 1932.

"Signed Christian J. Meunier Adjuster."

In accordance with the above contract of employment and pursuant thereto, Meunier, in due course, investigated the accident, and as a result of his search he ascertained that the fusee, which caused the death of the Bernich child, was the property of the New Orleans Terminal Company. Thereupon, on October 11, 1932, he made written claim against the railroad company for damages in the amount of $ 10,000 for the alleged negligent killing of the Bernich child, as follows:

"October 11, 1932.

"The Manager,

"Southern Railway System,

"Terminal Station,

"Canal and Basin Sts.,

"New Orleans, La.

"Dear Sir:

"I have been engaged under Contract of Employment with assignment of interest to investigate and adjust whatever claim has arisen from fatal accident to Lotus Ann Bernich, age 2 and 1/2 years, and accruing to the child's parents Mr. & Mrs. John A. Bernich, said accident having occurred at the child's home 5631 Charles Place which adjoins your tracks at said location, the child being burned to death by one of your railroad fusees on October 1st, 1932, at about 5:30 P. M. Said fusee was carelessly pitched, half-burned and out, practically into the backyard of the child that was killed.

"Full investigation just completed discloses that this child's death was due entirely to your wanton negligence.

"Accordingly, claim is hereby made in the full sum of $ 10,000.00, in the event the matter is amicably adjusted, with reservation of full rights on the part of the parents of the child should the matter be forced into litigation.

"I shall be pleased to discuss the matter with any of your claim representatives, and allow him to see what evidence my investigation has brought to light. It is asked that you give the matter your earnest attention at the earliest possible moment. Awaiting your advices, I remain,

"Yours very truly,

"CJM/B Signed Christian J. Meunier."

After this letter was received by the railroad, a conference was had between Meunier, as adjuster of Mr. and Mrs. Bernich, and a representative of the railroad company, which resulted in an offer being made by the latter to settle the claim for the nominal sum of $ 150. This offer was refused by both Meunier and Mr. and Mrs. Bernich.

Thereafter, the claim was placed in the hands of Mr. Gordon Boswell (an attorney at law practicing in New Orleans) for prosecution in the courts. Later, the case was withdrawn from Mr. Boswell's hands. It was then turned over to Mr. Maurice B. Gatlin, another practicing attorney located in New Orleans.

Suit was filed by Mr. Gatlin on behalf of Mr. and Mrs. Bernich against the New Orleans Terminal Company and judgment was awarded in favor of Mr. and Mrs. Bernich for the sum of $ 7,500. Shortly after the judgment was rendered, Mr. Gatlin, with the approval of Mr. and Mrs. Bernich, compromised the matter for $ 4,000.

Out of the proceeds of the compromise settlement, Mr. and Mrs. Bernich received 50 per cent. thereof after the deduction of minor expenses, Mr. Gatlin received 25 per cent., and Meunier claimed the residue (or 25 per cent.) which amounted to the sum of $ 983.19 by virtue of the above-quoted contract of employment. Mr. and Mrs. Bernich disputed the claim of Meunier, and as a consequence Mr. Gatlin deposited the money in the American Bank & Trust Company to the joint account of Mr. and Mrs. Bernich and Meunier. Later, Meunier attempted to withdraw the fund on deposit with the American Bank & Trust Company, but the bank refused payment because Mr. and Mrs. Bernich would not sign the appropriate check or draft. As a result, Meunier brought this suit against Mr. and Mrs. Bernich for the recovery of that sum, which he claims is due and owing for services rendered by him in accordance with the contract of employment.

The defendants resist liability upon the ground that the contract between the parties is illegal and against the public policy of the state, in that Meunier is practicing law without authority; that he undertook duties, by the contract of employment, which a lawyer only is able to perform; and that the court should not allow him to recover under a contract, by which he professes to be able to pursue the practice of law, in spite of the fact that he does not possess a lawyer's qualifications.

Meunier, on the other hand, insists that he is not practicing law; that he has never attempted or professed to be engaged in that profession; that the business which he pursues, viz., claim adjuster, is not the practice of law and has been specifically approved and recognized by the Legislature of the State in the passage of Act No. 202 of 1932, which defines and regulates legal practice.

The defendants concede that the business in which Meunier is engaged is exempted and excepted from the provisions of Act No. 202 of 1932, but they contend that the exception contained in the statute (upon which Meunier depends as recognition of the legality of the business he conducts) is unconstitutional, upon the ground that the Legislature is without power or right to pass any statute which encroaches upon the inherent power of the judiciary, and that when the Legislature attempted to allow persons, without legal training and...