Wabash Ry Co v. Elliott

• Decision Date: 09 April 1923
• Docket Number: No. 225,225
• Citation: 43 S.Ct. 406,261 U.S. 457,67 L.Ed. 743
• Parties: WABASH RY. CO. v. ELLIOTT
• Court: U.S. Supreme Court

261 U.S. 457

43 S.Ct. 406

67 L.Ed. 743

WABASH RY. CO.

v ELLIOTT.

No. 225.

Argued Jan. 16, 1923.

Decided April 9, 1923.

Mr. Frederic D. McKenney, of Washington, D. C., for petitioner.

Mr. M. J. O'Donnell, of Kansas City, Mo., for respondent.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

On April 2, 1918, while the railroad of the Wabash Railway Company was in the possession of the United States and operated by the Director General of Railroads, Mern G. Welker, a brakeman on that railroad, was fatally injured and died in circumstances which, under the Employers' Liability Acts of Congress, probably would have made the railway company liable in damages for his injury and death, had the company been operating the railroad at the time. His widow became the administratrix of his estate, and as such entered into a contract with Miles Elliott, an attorney at law, under which the latter was to investigate the claim for the injury and death, compromise the same, or enforce it by suit, and have for his service 50 per cent. of all moneys received. Elliott caused a notice, addressed to the railway company and reciting the substance of the contract, to be served on one Stepp, who was the station agent of the Director General at Chillicothe, Mo. The contract was made and the notice given under a statute of Missouri (section 691, R. S. 1919), which provides that such a contract shall, after the service of notice, give the attorney a lien on the claim and the proceeds for his portion or percentage, and that —

'Any defendant or defendants, or proposed defendant or defendants, who shall, after notice served as herein provided, in any manner, settle any claim, suit, cause of action, or action at law with such attorney's client, before or after litigation instituted thereon, without first procuring the written consent of such attorney, shall be liable to such attorney for such attorney's lien as aforesaid upon the proceeds of such settlement. * * *'

June 5, 1918, Elliott commenced an action by the administratrix against the railway company in the circuit court of Livingston county, Mo., to enforce the claim. Before there was any appearance by the railway company in that case, the Director General, acting through a claim agent in his employ, compromised the claim with the administratrix, paid to her $4,000 from the funds of the United States Railroad Administration, and received from her a written instrument acknowledging the receipt of that sum from him, and releasing him and the railway company from all claims and demands by reason of Welker's injury and death. The Director General also paid to her from the same funds the further sum of $162.85 to cover funeral and burial expenses. As part of the compromise and settlement, the admi istratrix and the claim agent acting for the Director General entered into a stipulation, bearing the title of the action against the railway company, reciting that the subject-matter of the action had been fully settled between the parties, and consenting that the action be dismissed at defendant's costs. This stipulation was presented and filed in the circuit court by counsel acting for the Director General. The settlement and the stipulation for a dismissal were without the consent of Elliott, and no part of the sum paid to the administratrix was paid by her to him.

January 11, 1919, Elliott began a proceeding against the railway company in the circuit court of Livingston county, where the action of the administratrix was pending, to enforce a lien under his contract and the state statute. In his petition he set forth the matters before stated, save that, instead of recognizing the federal control and operation of the railroad, he directly charged the railway company with all that was done by the Director General and the representatives, agents, and employees of the latter, and he alleged that as part of the compromise and settlement the company promised the administratrix to pay to him, as his compensation or percentage under the contract, the same amount that was paid to her. His prayer was that his lien be enforced by awarding him a judgment against the company for that sum. In an amended petition he made the Director General a party, charged both the railway company and the Director General with what he had before charged against the company alone, and prayed judgment against both.

Separate answers were filed, but that of the Director General need not be noticed. The company's answer set up, among other things: (1) That the federal possession, control, and operation of the railroad covered all the dates named in the petition, and there was no possession or operation by the company during that period; (2) that the acts charged against the company in the petition, in so far as they had any reality, were solely the acts of representatives, employees and agents of the Director General; and (3) that the suit of the administratrix and the proceeding by Elliott could not be maintained against the company, but only against the Director General. As showing the nature of the federal control and the company's freedom from liability for acts or omissions in the course of such control, the answer directed attention to and invoked the application of the acts of Congress, proclamations of the President, and orders of the Director General according to which that control was exercised.

On the trial the court found the issues between...