Piatt v. Swift & Company
| Decision Date | 05 April 1915 |
| Citation | 176 S.W. 434,188 Mo.App. 584 |
| Parties | W. H. H. PIATT and THOMAS R. MARKS, a Partnership Doing Business as PIATT & MARKS, Resoondents, v. SWIFT & COMPANY, a Corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
REVERSED.
Judgment reversed.
Russell Field for appellant.
Chas H. Thompson for respondents.
Plaintiffs a firm of Missouri law-yers practicing in this State, seek herein to enforce an attorney's lien upon a cause of action accruing to one Hayes, who while employed in defendant's packing plant in the State of Kansas, received personal injuries through defendant's alleged negligence.
Hayes was injured on January 14, 1913, and on the 24th of that month he entered into a written contract in the State of Missouri employing plaintiffs to prosecute a suit for damages to final judgment or settlement, and agreeing therein to give them fifty per cent of whatever amount was realized whether collected by suit, settlement, or otherwise. On the next day, January 25, plaintiffs notified defendants in writing of the contract and of the interest they had in Hayes' cause of action. Section 965, Revised Statutes 1909 authorizes such a contract to be made either before or after suit is brought, and provides that, upon notice thereof in writing, such contract shall operate from the service of said notice as a lien upon the client's cause of action and upon the proceeds of any settlement thereof for the percentage due the attorney, which lien cannot be affected by any settlement between the parties either before or after suit is brought; and said section also provides that any defendant who shall, after such notice, settle said cause of action without the written consent of the attorney, shall be liable for the lien as per the contract existing between the attorney and his client. Defendant made five payments to Hayes of $ 10 each, and later paid him an additional sum of $ 400, aggregating $ 450, in full satisfaction and discharge of all claims accrued or to accrue in respect of all results direct or indirect flowing from said personal injury. This was done without the knowledge or consent of the plaintiffs herein. They therefore claim that under section 965, Revised Statutes 1909, they are entitled to fifty per cent of $ 450 which is $ 225 with six per cent interest thereon from January 25, 1913, and bring this suit under the Missouri statute to enforce the attorney's lien given thereby.
At the time Hayes was hurt, a law was in force in the State of Kansas known as the "Workmen's Compensation Act." Pursuant to its terms defendant had elected to come within the purview of this Act and was operating its plant thereunder. The first section of said Act provides that no employer to which the Act applied should be liable for any injury for which compensation is recoverable thereunder, except in cases of injury caused by negligence; and section 2 provided that in such cases the existing liability of the employer should not be affected by the Act, but that the injured workman might elect between any right of action against the employer upon such liability and the right to compensation under the Act. Section 15 provides that no claim of an attorney at law for services should be an enforceable lien on payments due under the Act "unless the same shall have been approved in writing by the judge of the court where the case was tried; but if no trial was had, then by any judge of the district court of this State to whom such matter has been regularly submitted, on due notice to the party or parties in interest." Section 45 provided that every employee entitled to come within the provisions of the Act shall be presumed to have done so unless he serve written notice, before injury, upon his employer that he elects not to accept thereunder. Said Act may be found in Session Laws of Kansas, 1911, page 382, chapter 218, sections 1 to 49.
On January 21, 1913, three days before Hayes executed his contract with plaintiffs, he received from his employer, defendant herein, the sum of $ 10 and signed a "receipt for compensation under Kansas Workmen's Compensation and Employers' Liability Act, chapter 218, Laws 1911" wherein it was recited that the said sum of $ 10 was that proportion of his weekly wages to which he was entitled under the above Act. Thereafter, on each of the following days, to-wit, January 30, February 8, February 14, and February 20, 1913, he received $ 10 and signed a similar receipt, and on the last-named date, defendant paid him the sum of 400 and Hayes executed a receipt therefor, referring to the former weekly payments received by him which with the $ 400 aggregated $ 40 which he agreed to accept in full satisfaction and discharge of all claims accrued or to accrue in respect of his said injury. The Compensation Act provides for weekly payments of a specified proportion of the employee's wages at the time he was hurt, but it also provides in section 23 thereof that compensation due under the Act may be settled by agreement and a release executed. And in the case of Gorrell v. Battelle, 93 Kan. 370, 144 P. 244, the Supreme Court of Kansas has held that compensation may be made in a lump instead of by periodical payments.
Under the foregoing facts it is not seen how plaintiffs can successfully maintain their action. If plaintiffs have any rights in the premises, out of what do they grow? They are created, of course, by the contract with Hayes, but that contract alone and of itself does not measure or determine them. The contract can create a lien as against the defendant only by giving plaintiffs an interest in some valid right which Hayes had against defendant. Whatever right Hayes had arose by reason of his injury. That accrued in Kansas and was therefore a Kansas cause of action. Under the law in force there, he had two rights open to him. He could sue under the common law or he could proceed under the Compensation Act at his election. He had either one of two causes of action but could not pursue both of them. His employer had elected to come under the provisions of the Compensation Act. Before Hayes made his contract with plaintiffs he accepted compensation from his employer under said Act, and this was an election on his part to take under the Act rather than to pursue his common-law remedy, and his receipt of the $ 400 clearly evinced his final choice in the matter. The terms of the Kansas Compensation Act clearly show that where both employer and employee elect to come under and be bound by the Act, the cause of action given thereby supersedes the cause of action given by the common law. And it is so held by the Kansas Supreme Court. [Shade v. Ash Grove etc. Cement Co., 92 Kan. 146, 139 P. 1193; McRoberts v. National Zinc Co., 93 Kan. 364, 144 P. 247.] It is true both these cases applied to the Act as amended in 1913 when section 2 of the Act was repealed, but this does not make any difference if the employer had elected to come under the Act and the employee had elected to accept thereunder. Consequently, at the time plaintiffs made...
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