Stephens v. Metropolitan Street Ry. Co.

• Decision Date: 12 June 1911
• Citation: Stephens v. Metropolitan Street Ry. Co., 157 Mo.App. 656, 138 S.W. 904 (Kan. App. 1911)
• Parties: JAMES M. STEPHENS et al., Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

138 S.W. 904

157 Mo.App. 656

JAMES M. STEPHENS et al., Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1911

Appeal from the Jackson Circuit Court.--Hon. E. E. Porterfield Judge.

Judgment reversed and cause remanded. (with directions).

John H Lucas and Piatt & Lee for appellant.

(1) (a) The Attorney's Lien Law, sections 964-65, R. S. Mo 1909, does not vest in the attorney a property right in his client's cause of action, but merely gives him a lien on the proceeds thereof to insure the payment of his fee for services. Laughlin v. Powder Co., 134 S.W. 116; Hurr v. Railroad, 141 Mo.App. 217; O'Connor v. Transit Co., 198 Mo. 622, 641-642; Curtis v. Railroad, 118 Mo.App. 352; Curtis v. Railroad, 125 Mo.App. 369; Waite v. Railroad, 204 Mo. 502; Boyle v. Railroad, 134 Mo.App. 71; Boyd v. Mercantile Co., 135 Mo.App. 115; Abbott et al. v. Railroad, 138 Mo.App. 530. (b) James M. Stephens was the sole owner of his cause of action and had the absolute right to settle his case on such terms as he chose at any stage of the proceedings. (c) A contingent fee for services of an attorney is liquidated as to the amount thereof by the final settlement actually made by or for his client and such settlement makes the attorney a creditor of his client. Hurr v. Railroad, 141 Mo.App. 222, and cases there cited. (2) In the absence of fraud by the client in the settling of his cause of action, the settlement is conclusive as a basis for determining his attorney's contingent fee. Tate v. Railroad, 131 Mo.App. 107; Hurr v. Railroad, 141 Mo.App. 217, and cases cited; Laughlin v. Powder Co., 134 S.W. 116. (3) (a) Respondents being creditors of their client, James M. Stephens, cannot complain of the fraud, if any, practiced on him, their debtor, by defendant, even though the effect thereof would be to diminish his liquidated assets Parker v. Roberts, 116 Mo. 657; Colbern v. Robinson, 80 Mo. 541; Distilling Company v. Ellis, 63 Mo.App. 17; Ready v. Smith, 170 Mo. 163; Webb v. Rockefeller, 195 Mo. 57. (b) A creditor cannot avail himself of a claim that his debtor was induced to convey or mortgage his property or settle a suit through duress, administration of drugs, or intoxicants or on account of imbecility, such defense is personal to the debtor alone. Parker v. Roberts, 116 Mo. 662; Distilling Company v. Ellis, 63 Mo.App. 17; Eaton, Adm., v. Perry, 29 Mo. 96. (4) Respondents' claim of a quantum meruit and a written contract in same count is inconsistent and repugnant, and being so he cannot maintain this action. Attorney's Lien, sec. 964-5, R. S. 1909; Rinard v. Railroad, 164 Mo. 284; Mansfield v. Bank, 74 Mo.App. 202; Soap Works v. Sayers, 51 Mo.App. 314. (5) Respondents' alleged written contract is invalid because it authorizes them to sue whomsoever they please and because they allege their client at no time possessed sufficient mental capacity to make a contract. (a) See movers' motion, paragraph 4, alleges total destruction of cilent's capacity for recollection and continuity of thought. (b) See paragraph 2 of contract. (6) The jury should have been discharged for misconduct and improper argument of counsel for respondent during the progress of the trial. Neff v. City of Cameron, 213 Mo. 369; Haynes v. Town of Trenton, 108 Mo. 133; Tuck v. Traction Company, 140 Mo.App. 355; Torreyson v. Railroad, 129 S.W. 409; Epstein v. Railroad, 197 Mo. 738. (7) Defendant's motion for judgment on the pleadings should have been sustained and request for verdict in the sum of four hundred forty-one and sixty-seven one-hundredths dollars should have been given. Hurr v. Railroad, supra, and cases cited. (8) It was error to permit the introduction of evidence as to the nature, character and extent of James M. Stephens' injuries. (9) The court below did not have jurisdiction to entertain respondents' motion while the appeal was pending in this court. R. S. 1909, sec. 2038; In re Bledsoe Hill, 222 Mo. 609.

Frank P. Sebree, A. L. Cooper and Scarritt, Scarritt & Jones for respondents.

OPINION

JOHNSON, J.

This is a proceeding to enforce an attorney's 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 the 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 stipulations:

"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 of 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 $ 3750. 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, Missouri, for the sole consideration of the sum of one thousand three hundred twenty-five and no one-hundredths 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 Fifteenth 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. 35829, in Jackson County Circuit Court, and being in full satisfaction of the judgment rendered therein in favor of plaintiff against defendant for $ 3750, 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 one-hundredths 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 misrepresentation of existing facts, false statements as to the fidelity of ...