Miller v. Urban
| Citation | 123 Conn. 331,195 A. 193 |
| Court | Connecticut Supreme Court |
| Decision Date | 03 November 1937 |
| Parties | MILLER v. URBAN. |
Appeal from Court of Common Pleas for District of Waterbury, New Haven County; Origen S. Seymour, Acting Judge.
Action by Vincent A. Miller against Julius Urban to recover an attorney's fee. The case was tried to the court. Judgment for plaintiff, and defendant appeals.
Error and new trial ordered.
In absence of unforeseen emergency necessitating the intervention of attorney as witness for client and disclosure of offer on part of attorney to retire and leave further conduct of case entirely to other counsel, attorney's offer to testify was ethically improper.
John F. McLinden, of Waterbury, for appellant.
William K. Lawlor, of Waterbury, for appellee.
Argued before MALTBIE, C.J., and AVERY, HINMAN, BROWN, and JENNINGS JJ.
The complaint alleged that the defendant engaged the plaintiff as attorney to represent him in the collection of a claim for personal injuries sustained in an automobile accident, that by virtue of the efforts of the plaintiff and a suit brought by him against Richard and Edward Finley a settlement was obtained from their insurer, and that the plaintiff thereby became entitled to compensation on the basis of an agreed contingent fee. The trial court found the issues raised by the denial of these allegations in favor of the plaintiff and rendered judgment for him to recover 25 per cent. of the amount received in settlement of the claim.
The finding is that in September, 1932, while Urban was confined to his home in Southbury, as a result of a conversation between him, his wife, and William Bercier, the plaintiff was taken to Southbury by Bercier and engaged by the defendant to take such action as was necessary to obtain a settlement of his claim against the Finleys, or secure a judgment therein, and that the defendant agreed that the plaintiff should receive a fee of 33 1/3 per cent. of recovery if suit had to be brought and tried, or 25 per cent. if settlement was obtained. It is found, further, that the plaintiff promptly and diligently investigated the facts pertaining to the claim, negotiated with the insurer for the Finleys, brought suit on April 18, 1933, notified Urban by letter that he had done so, and, receiving no reply, continued to work on the case until in June, 1935, he secured an agreement of settlement with the insurer, in accordance with which payment was made.
These facts are sufficient to constitute a contract of employment of the plaintiff by the defendant, and such performance thereof as to entitle the plaintiff to compensation accordingly, notwithstanding further findings that in March, 1933, the defendant retained another attorney, unknown to the plaintiff until that attorney entered appearance in the action which the plaintiff had brought and claimed it for the jury list, and that the insurer's draft in settlement was made payable to Urban and that attorney; it being found, also, that the plaintiff was never discharged as attorney, and that he continued to work on the case and his efforts brought about the final agreement of settlement with the insurer. As the evidence on the trial is not made part of the record, those assignments which attack findings as made without evidence are unavailing.
In the present action, the same attorney who was retained in the former case after the employment of the plaintiff entered his appearance for the defendant, filed an answer, and was the only attorney of record until entry of judgment. The finding states that he was not present on the first day of the trial and it was conducted by another attorney having offices with and associated with him in the practice of law, but on the second day he was at the counsel table, conferred with his associate during the examination of witnesses, and took part in arguments to the court on points of law. Eventually h...
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