Stephens v. Metropolitan St. Ry. Co.

• Decision Date: 12 June 1911
• Citation: Stephens v. Metropolitan St. Ry. Co., 138 S.W. 904, 157 Mo. App. 656 (Mo. App. 1911)
• Parties: STEPHENS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

138 S.W. 904

157 Mo. App. 656

STEPHENS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 12, 1911.

Rehearing Denied June 28, 1911.

1. ATTORNEY AND CLIENT (§ 189) — CONTINGENT FEE — LIEN — SETTLEMENT.

Though an attorney may contract with his client for services on a contingent fee, and by giving notice to the adverse party acquires a lien on the client's cause of action as security for the fee, the cause of action and the judgment when recovered, at least pending appeal, remains the sole property of the client, and hence a subsequent satisfaction thereof by the client without the attorney's consent for less than its value, though procured by the judgment debtor's fraud, is conclusive against the attorney, in the absence of proof that the settlement was also fraudulent as between the client and the attorney.

2. ATTORNEY AND CLIENT (§ 190) — SETTLEMENT BY CLIENT — CONCLUSIVENESS.

Where, pending appeal from a judgment for personal injuries, on which plaintiff's attorneys had a lien for services, the judgment debtor by getting plaintiff drunk induced him to settle and satisfy the judgment for a little more than one-third of its face value, and plaintiff, after becoming sober, elected to keep the fruits of the compromise and refused to pay any part thereof to his attorneys, they were bound by the settlement, and could not set the same aside because plaintiff was overreached.

3. ATTORNEY AND CLIENT (§ 190) — ATTORNEYS' LIEN — FRAUDULENT SETTLEMENT — RIGHTS OF ATTORNEY.

Attorneys contracted to prosecute a claim for injuries for one-third of the amount recovered and notified defendant of their right to a lien therefor. After recovering judgment for $3,750, defendant, by getting plaintiff drunk, pending appeal, induced him to settle and satisfy the judgment for $1,325, and plaintiff, after becoming sober, elected to retain such amount and refused to pay any part thereof to his attorneys. Held, that their rights as against defendant were limited to a recovery of one-third of $1,325, with interest from the date of the settlement.

4. APPEAL AND ERROR (§ 544) — ERRORS ON FACE OF RECORD — BILL OF EXCEPTIONS.

Where an error appears on the face of the record, it was not material to a review thereof whether the bill of exceptions was properly in the record or not.

5. ATTORNEY AND CLIENT (§ 190) — ATTORNEYS' LIEN — ENFORCEMENT.

Where, after judgment on which plaintiff's attorneys had a lien for their services, defendant made a private settlement with the client in disregard of the lien, the attorneys were entitled to enforce the same by motion in the action to set aside the satisfaction of the judgment to the extent of the lien, and for an award to them of an extension thereon to the extent thereof.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by James M. Stephens against the Metropolitan Street Railway Company. From a judgment enforcing an attorneys' lien in favor of E. L. Scarritt and others, against a judgment recovered in the action, defendant Railway Company appeals. Reversed and remanded, with directions.

John H. Lucas and W. H. H. Piatt, for appellant. Scarritt, Scarritt & Jones, for respondents.

JOHNSON, J.

This is a proceeding to enforce an attorneys' lien for one-third of a judgment recovered by James M. Stephens against the defendant railway company, and, incidentally, for the purposes of the lien, to set aside a satisfaction of the judgment entered of record by Stephens, on the ground that the compromise and satisfaction of the judgment were procured by fraudulent practices of defendant. Chronologically stated the facts of the case are as follows:

On December 25, 1907, Stephens was severely injured in a collision between one of defendant's street cars and a wagon in which he was riding, and, claiming that his injuries were caused by negligence of defendant, his wife, acting as his agent, entered into a written contract in his behalf with the respondent attorneys by the terms whereof the attorneys were engaged to institute and prosecute an action against defendant for damages. Afterward Stephens signed the contract which, inter alia, contained the following stipulation: "And it is agreed that the said firm shall receive as full payment of their services in this employment one-third of the full amount recovered or collected, whether by suit, judicial process or by compromise settlement on account of the claims of either of said persons arising out of the said injuries. It is understood and agreed that no compromise will be made of the claims of either of the said persons except upon the advice of said attorneys."

Pursuant to this contract the attorneys commenced the present suit January 30, 1908. The petition stated a cause of action founded on negligence of defendant in causing the injuries of plaintiff in the collision. February 3, 1908, the attorneys served on defendant a notice in writing of their lien in which it was stated "that the said James M. Stephens and Lizzie Mae Stephens have agreed with the undersigned firm that the said firm shall receive as full payment of their services in said employment one-third of the full amount recovered or collected, whether by suit, judicial process, or by compromise settlement of their said claim or cause of action either before the institution of suit or action, or at any stage after the institution of suit or action."

Answer was filed, and a trial of the issues before a jury resulted in a verdict and judgment rendered February 2, 1909, for plaintiff, in the sum of $3,750. An appeal to this court was allowed defendant March 29, 1909, and an order was entered giving defendant leave to file bill of exceptions on or before October 9, 1909. The appeal was not perfected nor was a bill of exceptions filed for the reason that on July 27, 1909, plaintiff and defendant, without the knowledge or consent of plaintiff's attorneys, compromised and settled the judgment under the terms of a written contract duly executed by plaintiff as follows: "Know all men by these presents, that I, James M. Stephens, of Kansas City, Mo., for the sole consideration of the sum of one thousand three hundred twenty-five and no/100 dollars to me paid by the Metropolitan Street Railway Company, the receipt of which is hereby acknowledged, do hereby release and forever discharge said Metropolitan Street Railway Company, its successors and assigns, from all actions, causes of actions, suits, controversies, claims and demands whatsoever for or on account of injuries received to the person or damages caused to the property of the signer hereof, or either of them, and especially on or about the 25th day of December, 1907, on the Fifteenth street line near 15th and Woodland avenue in Kansas City, Missouri, and being more fully described in the petition filed in case of James M. Stephens v. Metropolitan St. Ry. Co., No. 35,829, in Jackson county circuit court, and being in full satisfaction of the judgment rendered therein in favor of plaintiff against defendant for $3,750, February 12, 1909, and recorded in Book 700, page 578, in said court records. It is expressly understood and agreed that said sum of one thousand three hundred twenty-five and no/100 dollars is the sole consideration of this release and the consideration stated herein is contractual; and is not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein." On signing the contract and entering satisfaction of the judgment of record plaintiff received from defendant the consideration stated in the contract and retained it all, paying his lawyers nothing.

December 18, 1909, the attorneys of plaintiff began the present proceedings by filing a motion in the case of their client in which they alleged: "These attorneys beg leave to refer the court to the pleadings and proof adduced in this case relative to the extent of the injuries received by the plaintiff and for which damages were sought to be recovered, and state that the injury received by the plaintiff consisted of a fracture of the skull and concussion of the brain, whereby he was rendered utterly unconscious and so remained for many days, and whereby his mental powers were permanently impaired and injured to such an extent that he became largely incapacitated for labor and for performing the usual avocations of life, and whereby his capacity for continuity of thought and recollection were entirely taken away, and his powers of sight and hearing greatly diminished; that by reason of the impaired mental condition of the plaintiff the defendant, through its claim agents and servants, the names of whom are to the movers herein unknown took advantage of the plaintiff and by corrupt and evil practices, consisting of misrepresentations of existing facts, false statements as to the fidelity of the plaintiff's attorneys, and by the use of intoxicating liquors continued through many days, overcame the plaintiff's capacity to reason and decide, and obtained and procured his signature to what purports to be an agreement of settlement of the said claim and judgment, and at the same time paid to the said James M. Stephens the sum of $1,325 as an alleged consideration for such settlement and release, although these movers state and show to the court that the defendant had theretofore offered both to them and to said Stephens on more than one occasion the sum of $3,000 in settlement of said judgment. These movers show and state to the court that the amount paid to the said Stephens as aforesaid is an inadequate consideration for the release and discharge of the said judgment, and that the alleged release was obtained by the unconscionable advantage and fraudulent conduct of the defendant as heretofore stated; that the movers herein have received no compensation for their services rendered to said Stephens as aforesaid, and that the defendant has failed and refused to pay for the said...