New Orleans & N.E.R. Co. v. Tally & Mayson

• Citation: 69 So. 186,109 Miss. 393
• Decision Date: 12 July 1915
• Docket Number: 17047
• Parties: NEW ORLEANS & N.E. R. Co. v. TALLY & MAYSON
• Court: United States State Supreme Court of Mississippi

69 So. 186

109 Miss. 393

NEW ORLEANS & N.E. R. Co. v. TALLY & MAYSON

No. 17047

Supreme Court of Mississippi

July 12, 1915

APPEAL from the chancery court of Lamar county. HON. R. E. SHEEHY Chancellor.

Suit by Tally & Mason against the New Orleans & North Eastern Railroad Company. From a judgment for plaintiff, defendant appeals.

In May 1912, one J. J. Jones, of Mansfield, La., was injured at Eastabuchie, Jones county, Miss., by one of appellant's passenger trains, and some time between the date of the injury and the 18th of July, 1912, Jones employed a firm of Louisiana lawyers to collect damages from the railroad company for his injuries, and transferred in writing to them as compensation for collecting damages, fifty per cent. of any recovery the attorneys might be able to obtain either by suit or compromise. These Louisiana lawyers associated appellees with them for the purpose of collecting the claim by suit or otherwise; that paragraph of the letter by which this was done being in the following language:

"Mr Jones has placed this matter in our hands, and we now transfer it to you on a basis of twenty-five per cent. of what you recover. In other words, we have taken the case on a basis of fifty per cent., with the understanding that we advance the necessary court costs. We are willing, therefore to split our fee with you. Of course, we expect to furnish you with the evidence; and, if you think it essential or necessary, one of the members of our firm will be present at the trial."

Appellees pursuant to this employment, called upon appellant for a settlement, and advised it that they had been assigned twenty-five per cent. of the amount that might be recovered as compensation for their services. Appellant's claim agent, with appellees' knowledge and consent, went to Mansfield, La., for the purpose of seeing Jones in person in order to determine the amount for which he would be willing to settle the claim. While there he effected a compromise with Jones and his Louisiana lawyers for the sum of $800, which he then and there paid over to them.

According to the evidence for appellees, when the claim agent was discussing with them his intention to call on Jones in person, they notified him not to settle with Jones, and he not only agreed not to do so, but agreed to make settlement with them. According to the claim agent, all that he agreed to do was to protect appellees in the matter in so far as he could. When the settlement was made, the claim agent obtained from the Louisiana lawyers, according to his testimony, a promise to pay appellees their portion of the fee. This, however, was not done, and this suit was afterwards filed by appellees in order to recover from appellant twenty-five per cent. of the amount for which the claim was compromised. From a decree in their favor, this appeal is taken.

Reversed.

A. S. Bozeman and R. H. & J. H. Thompson, for appellant.

It is utterly unimportant in this case that Mr. Bozeman and Mr. Seixas knew that the appellees had been employed as associate counsel in the case and certainly unimportant that they were forbidden by appellees to settle the claim with either the injured Jones or his Louisiana lawyers, or with them jointly.

The case of Harris v. Hazlehurst Oil Mill etc., Co., 78 Miss. 603, we submit, is without application to this case. Had the railroad company ignored the claim of the Louisiana lawyers and made settlement with Jones, they might in a suit against the railroad for their fees have found support in the Harris case, by showing an equitable assignment in praesenti to them of an interest in the cause of action, but complainants' demand does not stand upon as high a plane as the demand of the Louisiana lawyers would have stood on such showing had their rights been ignored. Appellees only had employment as associate counsel upon a contingent fee to be measured by the amount recovered.

In the Harris case it appeared from an agreed statement of facts that the attorneys had obtained an equitable...