Roehl v. Ralph

• Decision Date: 02 July 1935
• Docket Number: No. 23406.,23406.
• Parties: ROEHL v. RALPH.
• Court: Missouri Court of Appeals

84 S.W.2d 405

ROEHL v. RALPH.

No. 23406.

St. Louis Court of Appeals. Missouri.

July 2, 1935.

Rehearing Denied July 16, 1935.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Action by William J. Roehl against Richard F. Ralph. From an order granting defendant's motion for new trial after verdict for the plaintiff, the plaintiff appeals.

Order affirmed and cause remanded.

William Waye, Jr., of St. Charles, and Arnot L. Sheppard, of St. Louis, for appellant.

John A. Nolan, of Clayton, and B. H. Dyer, of St. Charles, for respondent.

BENNICK, Commissioner.

This is an action for the damages alleged to have been sustained by plaintiff, the client, because of the alleged negligent failure of defendant, his attorney to have answered for him in a prior action pending in which the plaintiff herein was the defendant, as a consequence of which judgment was allowed to go against the plaintiff herein by default, and the judgment term was allowed to go by before plaintiff was apprised of what had occurred.

Plaintiff is William J. Roehl, of Webster Groves, Mo., whose business office is in the city of St. Louis, while defendant is Senator Richard F. Ralph, a member of the bar of the circuit court of St. Louis county and of our own bar as well, who maintains his office in the city of Clayton, the county seat of St. Louis county.

An action entitled Edward D. Jones v. William J. Roehl was instituted in the circuit court of St. Louis county, the same being an action upon a promissory note for $6,000 theretofore executed by Roehl in favor of Jones, and summons in the action was duly served upon Roehl, returnable to the January, 1931, term of court, which was to convene on January 12, 1931.

In his petition herein, Roehl alleged that on December 30, 1930, he employed defendant Ralph, for a valuable consideration, to represent him in the defense of the action brought against him by Jones; and that defendant accepted the said employment, and, for the consideration at the time agreed upon, consented and agreed to take charge of the defense of the action in plaintiff's behalf.

It was further alleged that plaintiff had a good and valid defense to such action, the same being that the note sued upon was wholly without consideration, and had been signed by plaintiff purely for the accommodation of Jones, the payee therein; and that he fully informed defendant at the time of his employment as to the facts constituting such defense.

Plaintiff then alleged that defendant, in disregard of his duty to represent plaintiff in said action, carelessly and negligently failed and omitted to plead in said action, or to take any other steps towards protecting plaintiff's interests therein, and that as a consequence, on April 13, 1931, during the January, 1931, term of court judgment was rendered against plaintiff by default for the principal and interest of the note aggregating $6,505.82, together with the costs of suit. It was also alleged that plaintiff had and acquired no knowledge or information regarding the rendition of said judgment until long after the expiration of the January, 1931, term of court.

Finally it was alleged that as the direct and proximate result of defendant's negligence as aforesaid, plaintiff was compelled to and did pay out the sum of $6,691.11 in satisfaction of said judgment; and it was for such sum that he prayed judgment against defendant in this action.

In his answer defendant admitted his status as a duly licensed, practicing lawyer, but denied each and every other allegation in plaintiff's petition contained.

Thereafter, upon defendant's application, a change of venue was granted to the circuit court of St. Charles county, wherein, upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $6,691.11, the full amount sued for. In due course defendant's motion for a new trial was filed, and the same was sustained by the court upon the ground of error in the refusal of a certain instruction requested by defendant. From the order so entered sustaining defendant's motion for a new trial, plaintiff's appeal to this court has followed by the usual steps.

Plaintiff's evidence was to the effect that upon being served with summons in the action on the note, plaintiff consulted with a St. Louis attorney, one W. Scott Hancock, a friend and acquaintance of many years' standing, not with a view to employing Hancock to take charge of the defense of the case, but rather to consult with Hancock regarding the advisability of employing Senator Ralph for that purpose, and to arrange with Hancock to accompany plaintiff to Clayton on the following morning to interview Ralph regarding the case.

Hancock was positive in his testimony that he was not employed in the case, though he admitted that plaintiff talked over his purported defense to the note with him, and that he was led to believe that the note was an accommodation note, and that no consideration had moved to plaintiff for his execution of it. At any rate, it is a conceded fact that Hancock did go along with plaintiff to Ralph's office and sat by while plaintiff consulted with Ralph about the matter, if indeed Hancock did not also participate in such conversation as was had, as Senator Ralph's testimony tended to disclose.

Plaintiff's version of the facts attending Ralph's alleged employment would have been far more convincing if it had not developed from his own evidence that his acquaintance with Senator Ralph had dated back many years; that the senator had handled cases for him before under such confidential and amicable circumstances that the question of the fee had never been discussed between the two in connection with the matters so handled; and that, as a matter of fact, as late as the summer of 1930, some few months before the occasion in question, plaintiff had consulted with Ralph about the defense to another action pending against him at Clayton, the defense to which was being actively conducted by Mr. John Haley, an attorney, and an office associate of Senator Ralph at the time.

It seems quite strange, in view of the admitted friendly relations existing between plaintiff and Ralph over a considerable period of years, that on this occasion, in a matter no more involved than the defense of an action on a note, plaintiff should have felt the necessity of first consulting Hancock about the advisability of his employment of Ralph, and of having Hancock accompany him to see Ralph with whom he was as well acquainted as he was with Hancock. Indeed, plaintiff's own evidence shows that he had from time to time made use of the services of Hancock as an attorney; and the relations existing between all the parties concerned would therefore seem to lend a great deal of credence to Senator Ralph's testimony that he was asked by plaintiff only to assist Hancock in the defense of the case if he did not happen to be in attendance at the Legislature when the case was called for trial, and that because of the probability that he would be so engaged, he suggested to plaintiff and Hancock that they might be able to have his office associate, Mr. Haley, sit in with them as local counsel in the trial of the case.

It was shown that in the majority of cases St. Louis lawyers did engage Clayton lawyers to assist them in cases pending in the county, and Ralph's testimony was strongly to the effect that he was given to believe that this was all that plaintiff and Hancock had in mind in consulting him on the occasion in question; that the matter of his compensation was not discussed because it was not then known whether he would be able to take part in the trial or not on account of his duties at Jefferson City; and that because of the uncertainty, and, in fact, of the improbability of his ultimate participation in the trial of the case, he gave it no further attention until some months later when Haley called him over the telephone at Jefferson City in regard to it.

It need scarcely be said, however, that to the extent that the facts regarding Ralph's employment by plaintiff are now in issue, the verdict of the jury has resolved all conflicts in plaintiff's favor, and so, as an appellate court sitting in review of alleged errors committed in the course of the trial, we accept the finding that Ralph was employed and agreed to undertake the sole defense of the action, and that it therefore became his duty as an attorney in the case to plead in due time, or to take such other steps as might have been necessary to protect plaintiff's rights at the convening of the January term of court on January 12, 1931. As to this, plaintiff's evidence was that he turned over to Ralph his summons and the copy of the petition accompanying it, together with the written statement he had prepared detailing the facts giving rise to his alleged defense of accommodation maker, and that Ralph thereupon advised him to dismiss the matter from his mind until such time as he might hear from him in regard to the case. Ralph's testimony was to the effect that all that plaintiff left with him was the written statement of his purported defense, though he did not deny the fact that plaintiff very likely had the summons and a copy of the petition with him during the conference. All of the parties agreed that there was a discussion of the matter of Ralph's attendance at the Legislature, which was convening shortly after the first of the year.

About January 4, 1931, Ralph went to Jefferson City to assume his duties as a member of the State Senate, and there was concededly nothing done about the case until April 13th, when the default judgment was taken. About May 17th plaintiff happened to be in Haley's office in reference to a personal matter which Haley was handling for him, and in the course of the conversation he inquired whether Haley knew when the Jones Case was coming up for trial. Haley...