Taylor v. Integrity Mutual Casualty Company

• Decision Date: 07 April 1924
• Citation: 265 S.W. 881,216 Mo.App. 599
• Parties: W. A. TAYLOR, Appellant, v. INTEGRITY MUTUAL CASUALTY COMPANY, Respondent.
• Court: Kansas Court of Appeals

265 S.W. 881

216 Mo.App. 599

W. A. TAYLOR, Appellant, v. INTEGRITY MUTUAL CASUALTY COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City

April 7, 1924

Appeal from Circuit Court of Buchanan County.--Hon. Thos. B. Allen Judge.

AFFIRMED.

Judgment affirmed.

W. A Taylor and James Fairweather for appellant.

W. E Stringfellow and Samuel A. Harper for respondent.

OPINION

ARNOLD, J.

This action is based upon an alleged lien growing out of a written contract for attorney's fee. Plaintiff is an attorney of St. Joseph, Mo., and defendant is a corporation engaged in the business of writing indemnity insurance. The contract reads as follows:

"St. Joseph, Mo., January 26th, 1921.

"I hereby employ W. A. Taylor as my attorney to represent all my interests in and about claim for damages on account of personal injuries received while in the employ of C. H. Atkinson Paving Company at Vermillion, South Dakota, on July 19, 1920; said claim for damages being made by me against the C. H. Atkinson Paving Company and Integrity Mutual Casualty Company.

"I authorize said Taylor to settle said matter, either before or after suit brought, when in his judgment a reasonable settlement of same should be offered, if any; also to receive and receipt for any money paid in settlement of my said claim, and agree to follow said Taylor's advice and direction in prosecuting said claim for damages in all particulars in and about said matter. Suit to be brought at Kansas City, Mo., if no settlement is had without suit. For said services I hereby agree to pay, and for said Taylor to have and retain one-half of any amount recovered in said matter, whether as a result of suit or settlement before or after suit is brought or while suit is pending.

JAMES R. FISHER,

W. A. TAYLOR."

A copy of said contract was served upon the accredited agent of the defendant company at Kansas City on January 31, 1921.

The purported claim upon which the contract was based grew out of the following facts: One James R. Fisher, a laborer in the employ of the C. H. Atkinson Paving Company of Vermillion, S. Dak., was injured while at work in that State, and a claim for damages thereby accrued against the said paving company. At that time said paving company held an indemnity policy protecting it generally against claims for damage from injuries to its workmen, as required by the Workmen's Compensation Law of South Dakota, Revised Code 1919, section 9439. Section 9438 of said Act provides that unless any employer or employee shall give notice of exemption from the operation of said law, as therein provided, they shall be deemed to have accepted the provisions of said law, and to be operating thereunder. Neither the Paving Company nor its employee Fisher had declared such exemption. After the injury occurred, Fisher took up the matter of settlement with his employer and entered into an agreement with the Paving Company and defendant herein to settle the claim under the provisions of the Compensation Law.

On September 14, 1920, a memorandum agreement was signed by the parties, as required by the Act, and filed with the Industrial Commissioner of South Dakota. By this agreement, Fisher was to receive $ 2 per day indefinitely, from the Insurance Company, until the limit allowed by law, not to exceed six years. [Par. 8, sec. 9459, Rev. Code So. Dak. 1919.] In accordance with said election by Fisher, the defendant company sent him checks for $ 12 for periods of two weeks compensation, under the provisions of the Act, for which Fisher signed receipts until January 17, 1921.

The testimony shows that Fisher had removed to St. Joseph, Mo., and that the said compensation checks mailed from So. Dak. reached Fisher from three to five days after the end of the two weeks period covered by the check; that around the holiday period 1920-21, the defendant company was somewhat slower in forwarding the remittances, so that the check for the two weeks ending December 18, 1920, did not reach Fisher until the 24th of said month, and the one covering the two weeks ending January 1, 1921, did not reach him until January 15th. Apparently displeased with this delay, on January 17, 1921, Fisher wrote defendant company that the check received by him January 15th should have been for $ 36 instead of $ 24, and refused to accept it. Thereupon the contract between plaintiff and Fisher was executed, whereby the former was employed to bring a suit at common law for damages against defendant in Kansas City, Mo.

Suit was duly instituted by Taylor and resulted in a judgment for defendant after three demurrers to the petition had been sustained. An appeal was proposed by Taylor, but was never perfected. Later, Fisher employed a firm of attorneys in Kansas City, Mo., who filed a claim before the industrial commissioner of South Dakota for a consummation of Fisher's agreement to settle under the Compensation Law in the form of a lump sum, in lieu of indefinite further weekly payments. The lump sum of $ 1750 was agreed upon between Fisher and defendant, with the approval of the Industrial Commissioner, said amount was paid to Fisher, and the Paving Company was released from further payment. Thereupon plaintiff was informed of the said final settlement and was advised to file with the Industrial Commissioner any claim he might have for legal services under the said Act, section 9477, Revised Code South Dak., 1919, which provides:

"Fees subject to approval. The fees of attorneys and physicians for service under this article shall be subject to the approval of the Industrial Commissioner."

Plaintiff did not file his claim with the Commissioner, preferring to stand upon his supposed rights under the contract. Such payment was refused by defendant company and this suit followed in the circuit court of Buchanan county. The cause was tried to the court without the aid of a jury, and resulted in favor of defendant upon the findings of law and fact. From the judgment entered therein plaintiff appeals.

Plaintiff bases his right to recover upon his alleged rights under the contract of employment with Fisher, and claims a lien upon any funds defendant Paving Company owed to Fisher. The action was defended upon the grounds that Fisher, having elected to take under the Compensation Law of South Dak., had no right of action for damages under the common law; having no such claim, Fisher's contract with plaintiff conveyed no...