Underwood v. Woods

• Decision Date: 10 February 1969
• Docket Number: No. 18832.,18832.
• Parties: Richard H. UNDERWOOD, Appellant, v. Hammond C. WOODS, Robert I. Adelman, Chester B. Kaplan and G. M. Osgood, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.2d 910 (1969)

Richard H. UNDERWOOD, Appellant, v. Hammond C. WOODS, Robert I. Adelman, Chester B. Kaplan and G. M. Osgood, Appellees.

No. 18832.

United States Court of Appeals Eighth Circuit.

February 10, 1969.

J. Whitfield Moody, of Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for appellant; John J. Cosgrove was with him on the brief.

Donald E. Raymond, Kansas City, Mo., for appellee Hammond C. Woods.

William I. Rutherford, of Lashly, Caruthers, Rava, Hyndman & Rutherford, St. Louis, Mo., for appellee Kaplan.

Thad C. McCanse, of James, McCanse & Larison, Kansas City, Mo., filed brief for appellee G. M. Osgood.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

On March 15, 1966, Richard H. Underwood filed his diversity complaint pro se against his former attorneys, Hammond C. Woods, Robert I. Adelman, and Chester B. Kaplan, and against G. M. Osgood, a physician-internist. He sought damages from Woods and Adelman for negligence in defending him on a Missouri charge for felonious assault, and for slander; from Kaplan for failure to advise and for failure to sue Woods and Adelman; and from Doctor Osgood for libel and for negligence and, seemingly, malpractice.

Plaintiff Underwood, who is not a lawyer, tried the case himself. He was his own primary witness. One other person, a second cousin, testified briefly for the plaintiff. On the defense side only Doctor Osgood testified. The three lawyer defendants offered no evidence.

Chief Judge Becker, after what he described as "a loose trial", let the case go to the jury. The following verdicts were returned:

1. In favor of the plaintiff for $3,908 against Woods and Adelman on the negligence claim.

2. In favor of Woods and Adelman on the slander claim.

3. In favor of the plaintiff for $1,441 against Kaplan on the claim for failure to advise.

4. In favor of Kaplan on the claim for failure to sue.

5. In favor of Doctor Osgood on all claims asserted against him.

Underwood moved for a new trial against Doctor Osgood. Each lawyer-defendant moved for judgment notwithstanding the verdict adverse to him and, in the alternative, for a new trial. The plaintiff's motion was denied. The court, after observing, "It appeared at various stages of this proceeding that the defendants were probably entitled to summary judgments against the plaintiff on all issues", and that it had allowed a plenary trial before a jury "in order that a full and complete record be made and that the plaintiff be given the fullest opportunity to establish his claims for relief", granted the respective motions for judgment notwithstanding. It did so on the stated grounds that (1) the negligence claim against Woods and Adelman was barred by the applicable Missouri statute of limitations, (2) the plaintiff failed, in any event, to make a submissible case of negligence against Woods and Adelman and was guilty of contributory negligence as a matter of law, and (3) the plaintiff failed to make a submissible case against Kaplan on the claim for failure to advise. In accord with Rule 50(c) (1), Fed.R.Civ.P., the court also ruled that, if its entry of judgment notwithstanding was thereafter reversed, the lawyer-defendants' alternative motions for a new trial were granted. The stated grounds were that the verdicts were against the weight of the evidence and that the rulings of the court in admitting evidence and in giving instructions were prejudicial to those defendants.

Plaintiff Underwood has appealed. By orders of the district court and of this court the case was submitted on the original files and the plaintiff was granted further relief pursuant to 28 U. S.C. § 1915(b) and (d), rather rare in civil cases, namely, the preparation of the transcript at government expense and the appointment of counsel for the plaintiff on the appeal. Mr. J. Whitfield Moody, Executive Director of the Legal Aid and Defender Society of Greater Kansas City, Jackson County, Missouri, was so appointed. Mr. Moody filed a brief and argued the case orally. He has rendered excellent professional services on behalf of the plaintiff-appellant. We are grateful to Mr. Moody for those services. Mr. Underwood has also filed a pro se brief which we have carefully considered.

The facts. In 1960 plaintiff Underwood, then age 41, rented a farm in Platte County, Missouri. One of the houses on the farm was occupied by a family named Munshaw. Underwood became friendly with that family and on one occasion was invited to have a meal at their house. There he met a man named Richard Roth, whose correct name, he later learned, was Burton, and a woman named Blount. On Saturday evening, September 3, 1960, they all went swimming at a nearby lake. An altercation ensued and Underwood was struck by both Burton and Mrs. Munshaw. He drove off in his truck but it stalled and he walked the rest of the way in the dark to his house. He dressed and started back to the truck. Burton and Miss Blount appeared and Burton told him to get off the farm or he would kill him. Underwood had a pistol at the time and Burton was shot.¹

Underwood was arrested that Saturday night. On Monday, Labor Day, he called Woods. Woods came from Kansas City to Platte City on Tuesday. Underwood paid him a $1000 retainer fee. Woods employed Adelman to assist him. Before Woods was employed Underwood had waived preliminary examination. Underwood also paid Woods $400 from which he was to pay a fee to a bondsman named Fields.

On October 20 an information was filed charging Underwood with felonious assault upon Burton.²

Underwood apparently then asked Woods to do two things. The first was to have photographs taken of Underwood in order to show the beating he had received. Woods referred him to a Kansas City studio and this was done. The second was to take the depositions of Burton, while he remained in Platte County, and of Miss Blount. These depositions were never taken. Underwood learned that Burton was on parole from the Illinois penitentiary. When Burton recovered from his wound, he returned to Illinois. Woods, however, thereafter suggested that he and Adelman go to Illinois to take Burton's deposition. He wanted Underwood to pay the expenses of that trip. Underwood did not refuse to let Woods go to Illinois or to pay those expenses.

Woods suggested that Underwood be examined by Doctor Osgood in order to determine whether the blow to the head he had received had injured him to the point where he did not know what he was doing when Burton was shot. Underwood accepted this suggestion and consulted Doctor Osgood on December 6, 1960. Head xrays were taken. The doctor discussed these with Underwood and told him "he thought he could get a defense up" for him. At the trial Doctor Osgood testified that, after his examination of Mr. Underwood, his diagnosis was that the patient was a schizophrenic paranoid; that, in his opinion, he was still in that condition at the time of the trial; that he probably did not know the difference between right and wrong at the time of the shooting; that one of the head xrays revealed a difference in contour and bone thickness "highly suggestive of an old injury", that is, one at least six months old; and that "There is a reasonable possibility that this plays a part in his mental disturbance."

In February 1961 Woods filed a motion for leave to withdraw as attorney of record for Underwood and cited Missouri Supreme Court Rule 4.44. He alleged, in support of the motion, lack of cooperation, antagonism, and threats by Underwood; refusal to communicate; and disregard of an agreement as to fees and expenses. Underwood in his testimony asserted that these grounds were not true. However, he, Woods and Adelman appeared in the state court on February 27, 1961. At that time Underwood stated that he felt the lawyers were not being fair with him or exercising reasonable care in his case but he agreed that the court might let them withdraw. They were permitted to withdraw by formal order entered on that day.

Underwood consulted Mr. Kaplan. He paid Kaplan a retainer of $250 on March 2, 1961. After a few days Kaplan said he would accept the case but wanted a fee of $2,500. Underwood paid him $1,000 more on March 8 and the balance of $1,250 on April 25. Underwood's check of March 8 carried a recital reading, "This to include all expense thru trial."

After Mr. Kaplan took Underwood's case, he wrote Doctor Osgood for a report of his examination of the plaintiff. In response, the doctor wrote Kaplan a letter dated March 12, 1962. This letter mentioned what the doctor felt was an old head injury and recited that in the course of examination of Mr. Underwood he formed "the definite opinion that at the time he is alleged to have committed the crime for which he is charged that he did not know right from wrong, and I strongly suspect that this mental state is not limited to that time only."

The criminal charge against Underwood was eventually dismissed in March 1962, prior to trial, when the state, upon its own investigation, was satisfied as to the psychiatric situation. Underwood in his testimony conceded that Kaplan had discussed the possibility of dismissal with him but later objected because he wanted an acquittal in order to prevent a refiling of the charge against him.

Underwood testified that he kept insisting that Kaplan sue Woods and Adelman; that Kaplan was not interested in doing so; that the lawyer knew Underwood intended to sue the former attorneys; that he and Kaplan had an oral agreement "that he Kaplan would handle any civil suit that I would want to come up with after the trial was over"; that, however, Kaplan "didn't say he would sue these two attorneys", and

"THE COURT: You say then that he agreed to sue anyone you and he both agreed had done you wrong after the termination of the criminal case?

MR. UNDERWOOD: That\'s right."

Before taking up the several issues raised by the appeal we feel...