Ranney v. Lewis

• Citation: 167 S.W. 601,182 Mo.App. 58
• Parties: ROBERT G. RANNEY, Appellant, v. THOMAS E. LEWIS et al., Respondents
• Decision Date: 13 June 1914
• Court: Court of Appeal of Missouri (US)

167 S.W. 601

182 Mo.App. 58

ROBERT G. RANNEY, Appellant, v. THOMAS E. LEWIS et al., Respondents

Court of Appeals of Missouri, Springfield

June 13, 1914

Appeal from Mississippi County Circuit Court.--Hon. Frank Kelly Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Russell Deal & Joslyn for appellant.

(1) The memorandum made by Judge Ranney in his office docket was a part of the res gestae and should have been admitted in testimony. Greenleaf on Evidence, Vol. 1 (12 Ed.), Sec. 108a. (2) The burden of proof rests upon the person who takes the affirmative. City of St. Louis v. Arnot, 94 Mo. 275; Berger v. Storage Co., 136 Mo.App. 36; Stephens v. Assurance Co., 139 Mo.App. 369; Bathe v Insurance Co., 152 Mo.App. 87. (3) In accepting employment a lawyer does not become an insurer of the success of his professional efforts. If he acts with care, industry and judgment of a lawyer of reasonable skill and capacity he is entitled to pay regardless of the result. Dooley v. Wreck, Admx., 172 Mo.App. 535.

J. M. Haw for respondents.

(1) The statement, or entry, having been made in the absence of defendants, and without their knowledge, could not be binding on them and was properly excluded. Collins v. Todd, 17 Mo. 537, 540; McLean v. Rutherford, 8 Mo. 109; Mulliken v. Greer, 5 Mo. 489; Blair v. Caldwell, 3 Mo. 353; Bank v. Durrill, 61 Mo.App. 543; Kennaday v. Holladay, 25 Mo.App. 503. (2) Where the verdict is substantially correct it ought not to be disturbed even though there be an error in the instructions. R. S. Mo. 1909, Secs. 1850 and 2082; Peterson v. Transit Co., 199 Mo. 331, 344; State ex rel. v. Stone, 111 Mo.App. 364, 372; Hannon v. St. Louis Transit Co., 102 Mo.App. 216, 222. (3) Plaintiff's petition in this cause fails to state facts sufficient to constitute a cause of action in that it does not allege that defendants promised to pay anything for his services or that they were reasonably worth the amount sued for, or any other amount. Brewer v. Swartz, 94 Mo.App. 392.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.--

This is an action instituted by appellant, Robert G. Ranney, a lawyer, for the purpose of recovering from respondents the alleged value of legal services rendered in the year 1908 in a Federal court in a case wherein these respondents were plaintiffs. Appellant sued for $ 220 as the balance due.

Defendants in their answer denied being indebted to plaintiff in that sum, but admitted employing plaintiff to bring the suit for them in the Federal court, and pleaded a special contract whereby they were to pay plaintiff $ 50 for his services, unless he should be caused to leave the city where he practiced in connection with their case, in which event it is alleged by defendants he was to be paid $ 25 per day for each day he was away; that $ 30 of said sum had been paid and that the balance ($ 20) had been tendered and refused. Defendants also pleaded a counterclaim for damages which they claimed to have sustained by reason of plaintiff's negligence in bringing the suit in a court that did not have jurisdiction of the subject-matter thereof, thereby causing defendants herein to pay costs, etc. The court, however, instructed the jury that they should find for plaintiff on the counterclaim, and as defendants did not appeal, this is out of the case.

Plaintiff replied by a general denial.

There was a trial by jury which found for plaintiff in the sum of $ 20, and he appealed.

The plaintiff at the time of the employment was a practicing lawyer of about forty years' experience, and at the time of the trial was judge of the common pleas court of Cape Girardeau county. He prepared and filed a bill in the Federal court, alleging that complainants were residents of Illinois and that defendants were residents of Missouri, asking $ 700 damages. Issue was joined, and a special master was appointed by the Federal court who heard the evidence and the arguments and made his report in which this language is used:

"This is a suit in equity in the circuit court to obtain an injunction restraining frequent trespasses on lands and to recover damages for such trespasses, and is based for its jurisdiction upon the diverse citizenship of complainants and defendants, but as the damages to complainants' land complained of are less than $ 2000 (being only $ 700 as alleged in complainants' bill and being only $ 75 as proven by testimony), this court has no jurisdiction of the subject-matter in this suit. I therefore recommend to the court that the temporary injunction heretofore issued be dissolved and that the complainants' bill be dismissed at their costs."

The report of the special master was approved and the bill dismissed and complainants (respondents here) paid the costs amounting to about $ 400.

The respondents herein were, at the date of the institution of the suit in the Federal court, the owners of a large tract of land, for which they paid $ 7000, situated in Mississippi county in this State, on what is known as Island No. Six in the Mississippi river, just opposite the town of Hickman, Kentucky. Part of their land was on the main shore below Dorena, and was a ferry landing. Persons going from the Missouri shore to Hickman would cross the chute and drive over their lands which were situated on the island, and the ferry boats were landing against their bank, and were causing the respondents herein considerable trouble. One of the respondents, Henry E. Lewis, a licensed attorney, consulted Mr. Ranney, the appellant herein, and told him they wanted suit brought in the Federal court. Mr. Ranney did everything necessary to be done in the Federal court case except being present when some depositions were taken at Hickman, Kentucky, at which time he was ill and in Colorado.

The attorney for the defendants in the Federal court case (Mr. Kelso) testifying for the plaintiff herein said that Mr. Ranney's services rendered in that case were worth $ 400 or $ 500. The special master also testified for Mr. Ranney that he thought $ 350 or $ 400 would be a reasonable fee for the work done. He and Kelso and plaintiff testified that the question of jurisdiction on which the Federal court case went off is one about which the courts differ. Kelso testified that he raised the question of jurisdiction at every stage of the proceedings, but that the court refused to entertain his objections until the testimony should be heard. Plaintiff testified that at the time Lewis employed him--"I advised him if there was no defense, I would charge him $ 50, and he spoke up very quickly and said, 'There will be a defense.' I said then, 'It is impossible for me to tell you then just how much labor will be required of me, and how many courts I will have to fight this case through, and it is a hard matter to fix the fee, and if I am required to do it, I might fix it for a greater amount than my services would be worth because I cannot tell all that would be necessary to do, and I would fix it high enough.' He said, 'Well, you would be reasonable with me, wouldn't you?' And I said, 'Why, as a matter of course, I would be reasonable about the fee.' And as soon as he left the office I made a memorandum in my docket of what I told him the amount of fee I would charge him." Plaintiff offered in evidence the following entry claimed to have been made by him in his office docket at the time he was employed by defendant Henry E. Lewis to bring the suit: "I told Henry Lewis that if there was no defense made, the fee would be $ 50. He gave me check for $ 60, fifty of which to be paid to clerk to cover costs." The court sustained defendants' objection that "no entry made by Judge Ranney could be binding upon the defendants," and plaintiff excepted. Plaintiff as a witness denied the allegations of defendants' answer.

Henry E. Lewis, one of the defendants, himself a lawyer, gave testimony supporting the averments of the answer. He stated that he never practiced in the Federal courts and that he was never a very active member of the bar; that he told Mr. Ranney he wanted the suit brought in the Federal court and perhaps told him why, but that he relied upon Ranney's advice. Defendants introduced the deposition of a lawyer practicing in Kentucky who stated that he had examined the papers in the Federal court case and ascertained why it was dismissed, and that $ 50 would be more than the attorney's services were worth in view of the record.

The court gave this instruction for the plaintiff:

"The court instructs the jury that the burden of proving a special contract for services, that is, that there was a sum agreed upon, is upon the defendant, and unless you believe and find that the defendant has proven said special contract by the preponderance or greater weight of the testimony, you will find that there was no special contract."

The court gave this instruction for the defendants:

"The court instructs the jury that the burden of proof to make out the claim of plaintiff by a preponderance of the evidence rests upon the plaintiff, and unless he has proven his claim for services, and that there was no special agreement to render the services for fifty dollars, you shall find for him in the sum of twenty dollars only. By preponderance of the evidence is meant the greater weight of the evidence."

Appellant argues that the instruction last quoted compelled him to not only prove his own case, but also to disprove the defendants' case.

"The burden of proof, as correctly understood, is the duty which rests upon a party asserting the affirmative of an issue or proposition of establishing it by a preponderance of the evidence. This duty remains with the party holding the affirmative until the end of...