Theobald v. Byers

• Decision Date: 19 June 1961
• Citation: 193 Cal.App.2d 147,13 Cal.Rptr. 864
• Parties: , 87 A.L.R.2d 986 Raymond THEOBALD and Eugene P. Aureguy, Plaintiff and Appellants, v. Robert K. BYERS and Bruce Jacobs, Defendants and Respondents. Civ. 19374.
• Court: California Court of Appeals Court of Appeals

Page 864

13 Cal.Rptr. 864

193 Cal.App.2d 147, 87 A.L.R.2d 986

Raymond THEOBALD and Eugene P. Aureguy, Plaintiff and Appellants, v. Robert K. BYERS and Bruce Jacobs, Defendants and Respondents.

Civ. 19374.

District Court of Appeal, First District, Division 2, California.

June 19, 1961.

Rehearing Denied July 19, 1961.

Hearing Denied Aug. 16, 1961.

William E. Ferriter, San Francisco, for appellants.

Hadsell, Murman & Bishop, San Francisco, for respondents.

SHOEMAKER, Justice.

Plaintiffs Raymond Theobald and Eugene P. Aureguy appeal from a judgment rendered in favor of defendant attorneys Robert K. Byers and Bruce Jacobs, in an action for their alleged malpractice.

The record shows that the defendants are attorneys practicing in Gilroy, California Jacobs being the employee of Byers. On September 5, 1956, plaintiffs employed defendants to prepare a note and chattel mortgage in connection with a loan of $5,000 which plaintiffs were making to John Higgins and Charles Fette, who were engaged in the food canning business, and for whom the defendants did all of their legal work. Aureguy spoke to Jacobs about the drawing of the documents and told him what was involved and arranged with Jacobs to deliver them to Higgins when he had completed their preparation. Higgins received the documents from the secretary of Byers and Jacobs without any directions as to the acknowledgment or recordation of the chattel mortgage, although Jacobs was present in the office at the time Higgins appeared and received the papers. The result was that Higgins and Fette executed the note and chattel mortgage and sent them on to Theobald and Aureguy without having the chattel mortgage acknowledged or recorded. In the subsequent bankruptcy of Higgins and Fette, the plaintiffs, because of the invalid chattel mortgage, were relegated to the position of unsecured creditors. The personal property covered by the chattel mortgage was of a value sufficient to fully secure the amount of the loan had the chattel mortgage been valid.

Defendants took the position that they were not negligent in the handling of this transaction and further that they did not act as attorneys for plaintiffs, but were at all times acting as attorneys for Higgins and Fette.

After trial by the court sitting without a jury, the court found upon sufficient evidence that plaintiffs and Higgins had employed defendants as attorneys to draft the promissory note and chattel mortgage; that the defendants were negligent in allowing Higgins to secure possession of these documents without advising plaintiffs or Higgins that the chattel mortgage should be acknowledged and recorded in order to be valid against Higgins' creditors; that such negligence was a proximate cause of plaintiffs' loss; that all parties wanted plaintiffs protected, and that plaintiff Aureguy was acting as the agent of plaintiff Theobald in all matters connected with the transaction; that plaintiff Aureguy was negligent in that 'he did not inquire of the defendant or any other attorney whether said chattel mortgage should be acknowledged or recorded or what should be done with said chattel mortgage, and in that he failed to arrange for the acknowledgment and recordation of said chattel mortgage * * *'; that this negligence was imputed to plaintiff Theobald and was a proximate cause of the failure of plaintiffs to have the status of secured creditors. Based upon these findings, the trial court ordered judgment for defendants since plaintiffs were contributorily negligent and thus barred from recovery.

The trial court expressly found both that defendants were acting as attorneys for plaintiffs and that the negligence of defendants was proximate cause of the damages sustained by plaintiffs, so it is apparent that the judgment for defendants was based solely on the court's finding that the plaintiffs were guilty of contributory negligence. Therefore, the only reason presented on this appeal is whether the trial court erred in finding plaintiffs guilty of contributory negligence.

Appellants first raise the question of whether contributory negligence may properly be considered as a defense at all when it is asserted by an attorney against a client who is seeking damages for the negligence of the attorney. In support of this position, appellants urge that the defense of contributory negligence is not appropriate in an action of this type because the relationship between attorney and client is a fiduciary one and of a confidential nature. We find no validity to this contention. The rule is well established that an attorney is liable to his client for negligence in rendering professional services. The courts have consistently held that liability will be imposed for a want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. Gambert v. Hart, 1872, 44 Cal. 542, 552; Estate of Kruger, 1900, 130 Cal. 621, 626, 63 P. 31; Moser v. Western Harness Racing Ass'n, 1948, 89 Cal.App.2d 1, 7, 200 P.2d 7; Armstrong v. Adams, 1929, 102 Cal.App. 677, 684, 283 P. 871. The lawyer can thus properly be classified with members of various other professions who are considered to possess knowledge, skill or even intelligence superior to that of an ordinary man and are, as a consequence, held to a higher minimum standard of conduct. See Prosser, Torts, 2nd Ed., p. 132. Doctors and dentists are held to this higher standard of care and their services can also be said to be of a fiduciary and confidential nature. Hence it would seem clear that similar rules of law would be applicable to all three professions. In actions against doctors and dentists for medical malpractice, courts have held the doctrine of contributory negligence to be a proper defense. Sales v. Bacigalupi, 1941, 47 Cal.App.2d 82, 117 P.2d 399; Preston v. Hubbell, 1948, 87 Cal.App.2d 53, 196 P.2d 113; Rising v. Veatch, 1931, 117, Cal.App. 404, 3 P.2d 1023. A patient will thus be barred from recovery for medical malpractice where the patient has disobeyed medical instructions given by a doctor or dentist or has administered home remedies to an injury without the aid of medical advice. There would seem to be no reason whatever why the same rule should not be applicable...