Tyler v. Superior Court

• Decision Date: 07 July 1909
• Citation: 73 A. 467,30 R.I. 107
• Parties: TYLER v. SUPERIOR COURT.
• Court: Rhode Island Supreme Court

73 A. 467

30 R.I. 107

TYLER

v. SUPERIOR COURT.

Supreme Court of Rhode Island.

July 7, 1909.

Sweetland, J., dissenting.

Petition by Thomas D. Tyler for a writ of certiorari to quash the record of the superior court in issuing an execution against petitioner. Writ granted.

Gardner, Pirce & Thornley (Hugh B. Baker, of counsel), for petitioner.

James Harris and Irving Champlin, for respondent.

BLODGETT, J. The petitioner seeks a writ of certiorari to quash the record of the superior court in issuing an execution against the petitioner for the sum of $312.95, in the name of Patrick Concannon, plaintiff in an action for assault and battery and false imprisonment in said court, $212.95 thereof to the use of Irving Champlin and $100 thereof to the use of James Harris, in satisfaction of their respective claims for services as counsel for said Concannon, who, pending the hearing on exceptions after verdict in his favor on June 18, 1906, for $375.83 and costs, thereafter on July 12, 1906, executed a release under seal to petitioner in payment of the sum of $100, and signed an agreement that the case might be entered "settled," both of which acts were done without the knowledge of his counsel, the said Champlin and Harris. The release and agreement of settlement were not filed in the superior court until May 31, 1907, two days after the decision of this court overruling the exceptions of the petitioner and directing the entry of judgment for Concannon on the verdict on May 29, 1907, as of the date of said verdict on June 18, 1906.

The counsel for Concannon, alleging that his settlement of the action with Tyler without their knowledge was collusive and for the purpose of depriving them of their fees, and claiming a charging lien in that behalf upon the judgment in Concannon v. Tyler, have respectively reduced their claims for services to judgment as against Concannon, and on their motion the superior court has ordered execution to issue against Tyler, as above set forth, after the alleged settlement by the parties, who severally deny all collusion, and one of whom, Tyler, the petitioner here, has instituted this proceeding and avers that the superior court is without jurisdiction to order execution to issue in the premises as aforesaid. The question so presented is whether counsel have a charging lien against the petitioner for their services upon these facts.

It is important to note in the first place that, unlike many other states, we have no statute regulating this matter. It is also necessary to say that on February 12, 1900, and before trial in the superior court, Mr. Champlin took an assignment of Concannon's right of action to any judgment which might be rendered in said action for assault in favor of his client, Concannon, and against Tyler, now petitioner here, as security for his fees, and gave notice thereof to Tyler. In Rice v. Stone et al., 1 Allen (Mass.) 566, it was held that an assignment for damages for an injury to the person was void at common law, even after verdict, on grounds of public policy. It was there said by Chapman, J. (page 568): "No case is cited where it has been held that an assignment of a claim for damages for an injury to the person has been held good, when the assignment was made before judgment in an action for the tort. Such claims were not assignable at common law. On the contrary, a possibility, right of entry, thing in action, cause of suit, or title for condition broken, could not be granted or assigned over at common law. * * * But in respect to all claims for personal injuries the questions put by Lord Abinger in Howard v. Crowther, 8 M. & W. 603, are applicable. 'Has it even been contended that the assignees of a bankrupt can recover for his wife's adultery, or for an assault? How can they represent his aggravated feelings?' And we may add the broader inquiry: Has any court of law or equity ever sanctioned a claim by an assignee to compensation for wounded feelings, injured reputation, or bodily pain, suffered by an assignor? There were two principal reasons why the assignments above mentioned were held to be invalid at common law. One was to avoid maintenance. In early times maintenance was regarded as an evil principally because it would enable the rich and powerful to oppress the poor. This reason has in modern times lost much, but not the whole, of its force. It would still be in the power of litigious persons, whether rich or poor, to harass and annoy others, if they were allowed to purchase claims for pain and suffering and prosecute them in courts as assignees; and as there are no counterbalancing reasons in favor of such purchases, growing out of the convenience of business, there is no good ground for a change of the law in respect to such claims. * * * A claim to damages for a personal tort, before it is established by agreement or adjudication, has no value that can be so estimated as to form a proper consideration for a sale. Until it is thus established, it has no elements of property sufficient to make it the subject of a grant or assignment. The considerations which are urged to a jury in behalf of one whose reputation or domestic peace has been destroyed, whose feelings have been outraged, or who has suffered bodily pain and danger, are of a nature so strictly personal that an assignee cannot urge them with any force. The character of this class of claims is not changed in this respect by a verdict before judgment. It must be made the subject of a definite judgment before it is assignable; a judgment upon which a suit may be brought. Stone v. Boston & Maine Railroad, 7 Gray (Mass.) 539. It is said in Langford v. Ellis, 14 East, 203, note, that the moment the verdict comes the damages are liquidated. This was an action of slander. But the principal case of Ex parte Charles, 14 East, 197, in which the other was cited, is regarded as overturning it. Buss v. Gilbert, 2 M. & S. 70. And these cases hold that neither an action for breach of promise of marriage nor for seduction passes to an assignee in bankruptcy before judgment. In our practice, where the points in controversy are seldom raised by the pleading, but are brought out in later stages of the case, the claim remains in great uncertainty till the judgment is rendered. And the case of Stone v. Boston & Maine Railroad, cited above, follows the ancient case of Benson v. Flower, Sir W. Jones, 215, where it was held that an action of the case is not assignable till after judgment, when it is reduced to a certainty. * * * In view of these and many other authorities to which we have referred, we are of the opinion that the ancient doctrine of the common law on this subject is still in force, and that the reasons on which it was originally founded are still valid. As an assignment of a claim for a personal injury is void, though it is made after verdict in an action to recover damages for the injury, the claim of the defendant Perrin cannot prevail." And this decision was affirmed in the recent case of Flynn v. Butler, 189 Mass. 377, 75 N. E. 730 (1908). And see Linton v. Hurley, 104 Mass. 353; Bennett v. Sweet, 171 Mass. 601, 51 N. E. 183.

So in Weller v. Jersey City, H. & P. St. R. Co., 68 N. J. Eq. 659, 662, 61 Atl. 459, 400 (1905), it was said by Gummere, C. J.: "A right of action for personal injuries cannot be made the subject of assignment before judgment, in the absence of a statutory provision to the contrary." And see cases cited. And in Hanna v. Island Coal Company, 5 Ind. App. 163, 167, 31 N. E. 846, 848, 51 Am. St. Rep. 246, it is said: "Ordinarily, however, an attorney acquires no lien for fees until after judgment. Therefore, until after judgment, the client may settle and compromise and release the cause of action in any manner be pleases without consulting his attorney, and the attorney has no power to prevent it. Simmons v. Almy, 103 Mass. 33; Parker v. Blighton, 32 Mich. 266; Pulver v. Harris, 52 N. Y. 73; Roberts v. Doty, 31 Hun (N. Y.) 128; Connor v. Boyd, 73 Ala. 385; Swanston v. Morning Star Mining Co. (C. C.) 13 Fed. 215.; Young v. Dearborn, 27 N. H. 324. In such a case a lien cannot be acquired before judgment, even by agreement between the attorney and client that will prevent the client from compromising and releasing the cause of action without the consent of the attorney, although the defendant may have notice of the agreement. Coughlin v. New York, etc., R. R. Co., 71 N. Y. 443, 27 Am. Rep. 75; Kusterer v. City of Beaver Dam, 56 Wis. 471, 14 N. W. 617, 43 Am. Rep. 725; Pulver v. Harris, supra. If the cause of action is one for unliquidated damages, and is not assignable, the client cannot give his attorney any lien upon it that will prevent a settlement or compromise by the parties before judgment, even if the amount is definitely fixed, and an agreement made that the same shall become a lien, and the adverse party notified of the fact. Jones, Liens, §§ 206, 207. Actions for slander and libel, assault and battery, personal injuries, resulting from the negligent conduct of others, are within the rule. * * * The charge of fraudulent collusion in the second paragraph of the complaint in no wise aids the appellant. Characterizing a transaction as fraudulent does not make it so in law, unless it is so in fact. Therefore, when the appellant charged that the appellee was guilty of a fraudulent collusion for the purpose of cheating him 'out of his fees and expenses,' it was incumbent upon him to state facts sufficient to support the charge. Conant v. National, etc., Bank, 121 Ind. 323, 22 N. E. 250; Bodkin v. Merit, 102 Ind. 293, 1 N. E. 625; Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377; Ham v. Greve, 34 Ind. 18. When Stark compromised his claim with the appellee, and dismissed the action without the consent of his attorney, he did what he had the lawful right to do. The contract to bring the action was made with Stark by the appellant. The appellee had nothing to do with...