Spahn v. United States

• Decision Date: 04 October 1950
• Docket Number: No. 7155.,7155.
• Citation: 92 F. Supp. 992
• Parties: SPAHN v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Virginia

92 F. Supp. 992

SPAHN v. UNITED STATES.

No. 7155.

United States District Court E. D. Virginia, Norfolk Division.

October 4, 1950.

Richard J. Alfriend, III, Norfolk, Va., for petitioner.

James N. Garrett, Norfolk, Va., for respondent.

BRYAN, District Judge.

By petition in this cause Sidney H. Kelsey, a practitioner at this bar, asserts a lien against the libelant's recovery for his fee for services as libelant's proctor in the early stage of the claim and litigation. Bases for the claim are a written contract and quantum meruit, implemented by the charging lien at common law and under the statute, Va. Code 1950, § 54-70.

The agreement authorized the petitioner to make claim and receipt for the libelant, and, if necessary, to sue for him, on his cause of action for illness contracted aboard the S.S. Deborah Gannett. Particularly, it empowered "my attorney to make such settlement or compromise as he may deem advisable, and (I) agree to rely on his sole advice relative thereto". It granted petitioner the right to execute releases in the name of the libelant and fixed his compensation at 50% "of any recovery received by him or by me, as a result of a suit or compromise in the matter". A lien for his services was expressly reserved.

Suit was filed and negotiations for settlement were opened. Petitioner over a period of several months rejected, one after another, the figures offered by the defendants until the proposal of compromise reached $1250.00. This sum he thought it advisable to accept, and a cheque for the amount, with the customary releases, was tendered him by proctors for the respondents. Libelant rejected the settlement, petitioner withdrew from the case, other counsel were retained, and in the end a decree of $2825.00 was obtained.

The agreement was valid in all respects. Jeffries v. Mut. Life Ins. Co. of N.Y., 110 U.S. 305, 4 S.Ct. 8, 28 L.Ed. 156. There is no contention, or the slightest evidence, of overreaching by the proctor. His good faith in deeming the proposed compromise advisable, and the fairness of his judgment, are not questioned. True, a larger amount was obtained through trial and appeal, but that is evidence of neither bad faith nor poor judgment on the part of petitioner.

The odds were against recovery and hope for success lay in compromise rather than contest, he thought and so explained to the libelant before his retainer. He was obviously not willing to devote his time and energies to the case, on a contingent fee basis,...