Whitecotton v. St. Louis & H. Ry. Co.

• Decision Date: 31 May 1913
• Citation: 157 S.W. 776
• Court: Missouri Supreme Court
• Parties: WHITECOTTON v. ST. LOUIS & H. RY. CO.

157 S.W. 776

WHITECOTTON v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri. Division No. 1.

May 31, 1913.

1. ATTORNEY AND CLIENT (§ 180) — STATUTORY LIENS — ATTORNEYS ENTITLED.

Where no notice in writing of a contract between an attorney and his client was served on the defendant, as provided by Rev. St. 1909, § 965, but defendant had the notice implied by the bringing of a suit in which he appeared as an attorney of record under section 964, the Attorney's Lien Act (Laws 1901, p. 46) operated in favor of deceased.

2. ATTORNEY AND CLIENT (§ 172) — STATUTORY LAW — CONSTITUTIONALITY.

Attorney's Lien Act (Laws 1901, p. 46) § 1, is constitutional.

3. ATTORNEY AND CLIENT (§ 190) — STATUTORY LIEN — EXTENT.

The Attorney's Lien Act (Laws 1901, p. 46) does not take away from a client the right of making an adjustment and giving an acquittance subject to his attorney's right to the value of his lien, and where, in a case presenting a complete settlement between the client and defendant of the whole claim, the measure of the attorney's recovery against the settling defendant is his contract percentage of the compromise sum actually received by the litigant, and the costs of the original litigation need not be taken from the gross compromise sum before getting at the attorney's share.

Appeal from Hannibal Court of Common Pleas; David Eby, Judge.

Action by Lily B. Whitecotton, administratrix, against the St. Louis & Hannibal Railway Company. Judgment for defendant, and plaintiff appeals, and appeal certified by the St. Louis Court of Appeals. Reversed and remanded.

Geo. A. Mahan and A. R. Smith, both of Hannibal, and J. D. Hostetter, of Bowling Green, for appellant. Whitecotton & Wight, of Moberly, for respondent.

LAMM, J.

Plaintiff, administratrix of her deceased husband, George W. Whitecotton, sued defendant to recover $400 under the Attorney's Lien Act.

The case is this: One McCune, a woman, employed decedent, an attorney, to collect damages for personal injuries claimed to have been received by her while a passenger on one of defendant's trains. The terms of the agreement were that he had full charge of the claim and of its compromise, prosecution, or settlement by suit or otherwise, on a contingent fee of one-half collected, and no compromise, settlement, or other disposition was to be made except through his supervision or agency and by his consent and agreement. Presently, failing to obtain settlement out of court, decedent brought suit for McCune, laying her damages at $6,000. After petition filed and service of process, McCune and defendant put their heads together, and, without consulting decedent or obtaining any release from him, settled the claim and suit, dismissing the latter by stipulation signed by them, for the agreed compromise sum of $400. The compromise settlement was a writing, reading: "St. Louis & Hannibal Railway Co., to Lula J. McCune, Hannibal, Mo., Dr. March 20, 1905. For and in consideration of the sum of four hundred dollars ($400.00) to me in hand paid and receipt of which is hereby acknowledged this 20th day of March, A. D. 1905, I, Lula J. McCune, release and discharge the St. Louis & Hannibal Railway Company from all claims and damages which I may have, or may be entitled to have, against the aforesaid railway company, for any and all loss, damage or right of action which has resulted or accrued, or which may hereafter result or accrue to me by reason of injury to myself on March 25, 1903, at Center, Mo., while a passenger on a train of the above railway company, and for which claim and injury I now have a suit against the St. Louis & Hannibal Railway Company pending in the circuit court of Ralls county, Missouri. It is further agreed that my said suit shall be dismissed at the next term of said court, and I hereby authorize the said railway company to have such entry of dismissal properly made. Correct, and when properly receipted, Bank of Hannibal is hereby authorized to pay and charge to account of the St. Louis & Hannibal Ry. Co. Approved. [Signed] J. M. Worland, Auditor. Paid out of auditor's funds. Signature of Claimant: [Signed] Lula J. McCune."

No notice in writing of the McCune-Whitecotton contract was served on defendant at any time as provided by R. S. 1909, § 965. But defendant did have the notice implied by the bringing of the suit and service of summons; decedent appearing as attorney of record, under section 964.

(Note: It is not contended, nor could it be under such circumstances, that the Attorney's Lien Act was not operative in favor of decedent. Taylor v. Transit Co., infra, 198 Mo. 715, 97 S. W. 155.)

Defendant, by answer and instructions in the instant case, challenged the constitutionality of the Attorney's Lien Act in a bristling array of particulars. So, in one refused instruction it asked the court to declare the law as follows: "The court declares the law to be that, under the pleadings and agreed statement of facts, plaintiff is not entitled to recover an amount in excess of $200."

The cause was tried on an agreed statement of facts, the substance of which (except as to a provision relating to the payment of costs in the original suit, of which more presently) we have given. The court sitting as a jury, found for plaintiff in the sum of $400 and rendered judgment therefor; that is, the court indulged the theory that in fact the true compromise sum was $800, and that defendant had paid over to McCune her $400 and held back decedent's half. On due steps taken, defendant appealed. Thereat the trial court ordered the appeal sent to the St. Louis Court of Appeals. That court on...