Plummer v. Great Northern Ry. Co.

• Decision Date: 22 September 1910
• Citation: 110 P. 989,60 Wash. 214
• Parties: PLUMMER et al. v. GREAT NORTHERN RY. CO.
• Court: Washington Supreme Court

110 P. 989

60 Wash. 214

PLUMMER et al. v. GREAT NORTHERN RY. CO.

Supreme Court of Washington

September 22, 1910

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by W. H. Plummer and another against the Great Northern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with instructions.

L. F Chester and J. J. Lavin, for appellant.

Geo. A. Latimer and W. H. Plummer, for respondents.

FULLERTON J.

Some time prior to April 30, 1908, one Hilton G. Funk received personal injuries while in the employ of the Nelson & Ft Sheppard Railway Company, a branch line of the appellant, Great Northern Railway Company, located in British Columbia, and on that day employed Geo. A. Latimer, one of the respondents, to prosecute such actions or proceedings as would be necessary to recover for the injury, agreeing to pay him therefor one-half of any sum he might recover as a fee for his services. Immediately thereafter written notice of the terms of the contract was served by Latimer on the local claim agent and attorney of the railway company then having offices in the city of Spokane. After the execution of the contract, Latimer formed a partnership with his co-respondent, Plummer, and assigned to him a one-half interest in the claim. The respondents thereupon employed the legal firm of Taylor & O'Shea of Nelson, British Columbia, who instituted proceedings, under the workmen's compensation act of British Columbia, against the Nelson & Ft. Sheppard Railway company to recover for the injury to Funk. While these proceedings were pending, and before anything pertaining to the merits of the claim had been determined, the claim agent of the Great Northern Railway Company, acting under the direction of one A. H. McNeill, who had charge of the legal business of the appellant company in British Columbia, settled the claim with Funk, acting for himself, for the sum of $500, and obtained Funk's written release of all claims against the appellant. The workmen's compensation act, under which the proceedings were pending, contains the following provision: 'Sec. 10. Any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement or award, and his solicitor or agent shall not be entitled to recover from him, or to claim a lien on, or deduct any amount for costs from the said sum awarded, except such sum as may be awarded by the arbitrator, on an application made by either party to determine the amount of such costs to be paid to the said solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by said regulations.' After the settlement, and pursuant to this provision of the act, an arbitrator was appointed who awarded to Solicitor O'Shea, of the firm of Taylor & O'Shea, the sum of $85 as costs and arbitrator's fees in the cause that had been instituted on behalf of Funk, and thereafter Taylor & O'Shea remitted one-half thereof to the respondents. No suit or action was begun on behalf of Funk in the state of Washington or elsewhere, other than the proceedings above mentioned. The respondents thereupon began the present action against the appellant to recover a sum equal to one-half the sum paid Funk in the settlement, averring that they had a lien on the fund allowed him in the settlement as security therefor and were deprived thereof by the payment of the same to Funk, who was then and at all times since insolvent and well known to the appellant to be so. The learned trial judge took the respondents' view of the law and entered a judgment in their favor...