Noell v. Chicago & E. I. Ry. Co.

• Citation: 21 S.W.2d 937
• Decision Date: 08 October 1929
• Docket Number: No. 20620.,20620.
• Court: Court of Appeal of Missouri (US)
• Parties: NOELL et al. v. CHICAGO & E. I. RY. CO.

21 S.W.2d 937

NOELL et al. v. CHICAGO & E. I. RY. CO.

No. 20620.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

As Modified, on Denial of Rehearing, November 19, 1929.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by Charles P. Noell and another against the Chicago & Eastern Illinois Railway Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded, with directions.

Hensley, Allen & Marsalek, of St. Louis, for appellants.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

BENNICK, C.

This is an action by plaintiffs, who are duly licensed attorneys at law, to recover from the defendant, Chicago & Eastern Illinois Railway Company, 50 per cent. of the amount alleged to have been paid by the latter to plaintiffs' client in settlement of a cause of action upon which plaintiffs had a lien for their fees. A jury was waived, and the cause tried before the court alone, resulting in the entry of a judgment in favor of defendant, from which the plaintiffs have duly prosecuted their appeal.

The petition alleged, in substance, that on July 12, 1923, one T. C. Kagy, was in defendant's employ as a fire knocker at or near its roundhouse in Salem, Ill.; that he was engaged on and about a certain locomotive engine of defendant, which was regularly used by the latter as a switch engine in its yards in connection with the movement of both interstate and intrastate commerce; that on said day, after the engine had been used in moving both classes of commerce, it was placed upon a cinder pit in defendant's yards; that, while it was being used in interstate traffic, it was defective, in that the flues of the boiler leaked, and caused water to run from the boiler and to become low, by reason whereof it was not in proper and safe condition to operate in moving traffic, without unnecessary peril to life or limb, in violation of the Federal Safety Appliance Act (49 USCA § 1 et seq.) and the Federal Boiler Inspection Act (45 USCA § 22 et seq.); and that by reason of such defects, the water in the boiler became low, as a direct result whereof the boiler exploded, and Kagy was killed.

The petition alleged the appointment of one Leckrone as administrator of Kagy's estate; that said administrator entered into a contract in writing with plaintiffs to prosecute his suit for him against defendant for the death of Kagy, said suit to be brought in St. Louis, Mo.; that by the terms of the contract the administrator agreed to pay plaintiffs for their services 50 per cent. of the amount collected by suit or otherwise; that, pursuant to said contract, plaintiffs instituted suit in the circuit court of the city of St. Louis, on behalf of said administrator, and against defendant, based upon a violation by defendant of the Federal Safety Appliance Act and the Federal Boiler Inspection Act, in which suit defendant was duly served with process; and that, by reason of said contract and suit, plaintiffs had a lien upon the cause of action for 50 per cent. of the proceeds of any settlement made or judgment rendered therein.

It was then alleged that on or about June 8, 1925, while said suit was pending and undetermined, defendant settled such cause of action and suit with the administrator, without plaintiffs' knowledge and consent, by the payment to plaintiffs' client of the sum of $4,000, and that by reason of the said lien, and the deforcement thereof by defendant, the latter became indebted to plaintiffs in the sum of $2,000, for which sum, with interest from the date of the institution of the suit, plaintiffs prayed judgment.

In its answer, defendant admitted the fact of the employment and death of Kagy, and the appointment of the administrator, as alleged in the petition, but denied generally the other allegations therein contained. Further answering, defendant alleged that at the time of Kagy's death he was employed in intrastate commerce, and that his death was not caused by any defect in the locomotive engine mentioned in the petition, or in the machinery, equipment, or appliances furnished by defendant. It was then averred that at the time of Kagy's death there was in force and effect in Illinois a Workmen's Compensation Act (Laws 1913, p. 335, as amended), and various sections of that act relating to the rights and remedies of a claimant thereunder were set out in full.

The answer then alleged that plaintiffs instituted a suit for the administrator against defendant for the death of Kagy, under the Federal Safety Appliance Act, in the circuit court of the city of St. Louis; that said cause of action was tried in said court on or about November 17, 1924; that, at the conclusion of the taking of testimony, defendant's demurrer to the evidence was sustained, whereupon plaintiffs, on behalf of the administrator, took an involuntary nonsuit; that thereafter plaintiffs for said administrator, filed a second suit in the circuit court of the city of St. Louis against the defendant for the death of Kagy, under the provisions of the Federal Safety Appliance Act; that, while said second suit was pending, defendant filed a bill in equity in the circuit court of Marion county, Illinois, against said administrator and others, for an injunction prohibiting and restraining said parties from proceeding with said suit; that a perpetual injunction was issued as prayed on June 29, 1925; and that the decree in said equity suit was binding upon the plaintiffs herein, and was a bar to their cause of action herein; and that to deny the defendant the full force and effect of said decree would be to contravene section 1 of article 4 of the Constitution of the United States of America, providing that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

It was then alleged that, after the rendition of the decree in the equity suit, the action which was pending in the circuit court of the city of St. Louis was dismissed by the administrator; that thereafter, on June 8, 1925, a petition was filed by the administrator with the Industrial Commission of Illinois, wherein the administrator agreed to an award an account of the death of Kagy, and defendant agreed to pay the same; and that said agreement was approved by the Industrial Commission on July 26, 1926. It was further alleged that the effect of the award of the Industrial Commission was to constitute a final adjudication that the remedy of the administrator for the death of Kagy was under the Workmen's Compensation Act of Illinois; that to deny to defendant the full force and effect of such award would be again to contravene section 1 of article 4 of the Constitution of the United States of America; and that the award and claim under such Compensation Act was and is not subject to any lien for attorney's fees.

In their reply, plaintiffs denied that Kagy at the time of his death was employed in intrastate commerce, but averred that he was engaged in interstate commerce, and was killed when the boiler exploded because of the defects therein, and as the result of defendant's violation of the Federal Boiler Inspection Act. It was then alleged that Kagy was not in the class of employés covered by the Workmen's Compensation Act of Illinois; that he was excluded by the federal statutes from the control of the state of Illinois with respect to compensation; that said federal acts were exclusive; and that the cause of action for Kagy's death was not governed by the Workmen's Compensation Act of Illinois, but arose under the federal statutes mentioned.

Plaintiffs further stated that they had no knowledge of whether a decree was entered in the injunction suit in Illinois, or of the facts found by the court therein, and averred that any decree or judgment of the Illinois court was not binding upon the Missouri court, or upon plaintiffs, for the reasons that plaintiffs were not parties to said cause; that neither the issues nor the parties to the two causes were the same; and that, if any decree was rendered in said injunction suit, it was rendered after the settlement and compromise of the suit pending in the circuit court of the city of St. Louis, and was rendered in a friendly and collusive proceeding between defendant and the administrator, as a part of a fraudulent scheme to defeat plaintiffs of their attorney's lien.

Plaintiffs further alleged that they had no knowledge of whether the petition referred to in the answer was filed with the Industrial Commission of Illinois, and that they had no knowledge of the other matters pleaded by defendant in connection therewith, but alleged that, inasmuch as they had no notice of such proceeding, were not parties thereto, and did not participate therein, any award made in such proceeding would have no binding effect upon them before the Missouri court, and that all such proceedings were had after the settlement and compromise of the cause of action out of which their right to a lien and to a recovery herein arose.

The reply concluded with the allegation that the Industrial Commission of Illinois did not pass upon the issue as to whether Kagy was killed by reason of defendant's violation of the Federal Boiler Inspection Act; that said commission had no jurisdiction over the cause of action for the death of Kagy by reason of the provisions of the Compensation Act of Illinois and of the federal statutes mentioned; and that to deny to defendant the force and effect of the award of said Industrial Commission of Illinois would not be in contravention of the full faith and credit clause of the Constitution of the United States of America.

The evidence disclosed that on July 12, 1923, while Kagy was in the employ of defendant, he was instantly killed by the explosion of a boiler on one of defendant's locomotives, while the locomotive was standing over a cinder pit near defendant's roundhouse in its yards at...