Wolf v. United Railways Company v. Louis
| Decision Date | 24 January 1911 |
| Citation | 133 S.W. 1172,155 Mo.App. 125 |
| Parties | BENJAMIN J. WOLF, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Glendy B. Arnold for appellant; Boyle & Priest of counsel.
The demurrer to the evidence should have been sustained: (a) There is no evidence that the alleged settlement, made by defendant with plaintiff's client, was without his written consent. Sec. 965, R. S. 1909; Marshall v Ferguson, 94 Mo.App. 175; State v. Hirsch, 45 Mo. 429; Swinhart v. Railroad, 207 Mo. 423, 434; Rex v. Rogers, 2 Camp 654; Rex v. Jarvis, 1 East. 311 (note); Little v. Thompson, 2nd Me. 228; Rex v. Hazy, 2 C. and P. 458; 1 Greenleaf on Ev sec. 78.
John J O'Conner for respondent.
(1) Under sec. 965, R. S. 1909, where an attorney has a contract with his client by which he is to receive for his fee a certain per cent of the amount recovered, and he serves written notice on the defendant of his contract, it then becomes the duty of the defendant to take such attorney into account on making any settlement or compromise with such client of her or his said claim, and when the defendant ignores such attorney, and settles such claim with said client without defendant having the written consent of such attorney to make such settlement, and the client fails to pay said attorney his fee, the defendant becomes liable to the attorney for the amount of his per cent designated in said contract. O'Connor v. Transit Co., 198 Mo. 641. (2) It is the defendant, and not the client, who shall secure the written consent of the attorney before settling with his client. Sec. 965, R. S. 1909. (3) But even though a negative averment may be necessary to the statement of a perfect cause of action, yet, being negative and the facts relating to it being peculiarly within the power or knowledge of the defendant, the establishment of such negative allegation is not an essential element in plaintiff's case, for, where the subject-matter of a negative averment lies within the knowledge of the other party, the averment it taken as true, unless disproved by that party. Fulwider v. Trenton Gas L. & P. Co., 216 Mo. 582; Long v. Nute, 123 Mo.App. 204.
NORTONI, J.--This is a suit under the attorney's lien statute for compensation from defendant on account of services rendered by plaintiff attorney to his client in a cause which was settled by defendant without the alleged written consent of plaintiff. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff is an attorney at law engaged in the practice of his profession in the city of St. Louis and as such was employed by Clara M. Tucker to prosecute a claim for damages which accrued to her through a negligent injury inflicted while she was a passenger on defendant's car. While Clara M. Tucker was a passenger on defendant's street car, she suffered an injury through the negligent derailment of the car and employed plaintiff attorney, by a contract in writing, to prosecute her claim and collect damages from defendant through a suit at law or settlement and agreed to give him fifty per cent of the amount reovered, as compensation for his services. In due time, plaintiff served a notice of his employment upon defendant street car company and about this fact there is no controversy. Some time thereafter, defendant settled the claim of Clara M. Tucker with her in person and took a release and acquittance of her cause of action, for which it paid her the sum of $ 500. Thereafter, plaintiff instituted this suit against defendant under the attorney's lien statute, seeking to recover from defendant as his compensation $ 250, or one-half the amount it had paid to his client, on the theory that defendant had settled the cause of action without his written consent, in disregard of the statute. The attorney's lien statute referred to gives an attorney at law a lien upon his client's cause of action and authorizes contracting for a contingent fee of a percentage of the amount recovered by suit or settlement. The statutes referred to are sections 964 and 965, Revised Statutes 1909. It is provided in the section last cited that upon an attorney contracting with his client for services in such cases, he may serve a notice in writing upon the party against whom the claim is asserted as to the fact of his employment and the amount of the compensation he is to have, and that the agreement with his client shall operate from the date of such service as a lien upon the claim or cause of action and upon the proceeds of any settlement between the parties either before suit or action is brought or before or after judgment thereon. It is further provided therein that if any defendant or proposed defendant with respect to such claim, after notice served by the attorney, settles the same with the client or claimant, without first procuring the written consent of such attorney, it shall be liable to him for such attorney's lien upon the proceeds of the settlement as per the contract existing between the attorney and his client. Under this statute, it is the rule of decision that through the act of settling a cause of action with the attorney's client after proper notice of his contract of employment and without his written consent, the law raises an obligation on the part of the party so settling the claim or cause of action to recompense the attorney in accordance with the amount stipulated for in the contract with his client and such claim may be enforced in a suit by him against the settling defendant. [O'Connor v. St. Louis Transit Co., 198 Mo. 622, 97 S.W. 150; Taylor v. St. Louis Transit Co., 198 Mo. 715, 97 S.W. 155.] Plaintiff predicates his right of action upon the statute above referred to and avers that though defendant had due notice of his contract of employment by Clara M. Tucker for compensation at the rate of fifty per cent of the amount recovered by her, it settled the claim or cause of action directly with her without his written consent. On the trial, plaintiff proved all of the facts essential to his right of recovery, unless it be the allegation contained in his petition to the effect that he had not given his written consent to the settlement. On this question there is not a word of direct proof in the record, and so far as we have been able to ascertain after reading the entire evidence several times, there is a total absence of any facts or circumstances in the proof giving rise to a reasonable inference that plaintiff did not give his written consent to the settlement. At the conclusion of the evidence for plaintiff, defendant moved the court to direct a verdict for it, but the request was denied and no evidence whatever was offered on its part.
The principal argument advanced for a reversal of the judgment is to the effect that plaintiff failed to sustain the burden which the law placed upon him, by introducing sufficient proof to show a prima facie right of recovery, in that it does not appear defendant settled the caused of action with Clara M. Tucker without his written consent. Indeed, it is said from all that appears it may be plaintiff gave both written and verbal consent to the settlement and it did not devolve upon defendant to prove the contrary. We believe the argument to be sound for besides the statute on which the suit predicates being in derogation of the common law and in its character penal, it confers a cause of action upon plaintiff in the circumstances stated only when the settlement is had without his consent, for of course written consent is included in the broader term of consent alone. In other words, if no consent whatever is given, of course, then no written consent for the settlement was had. Though the mere verbal consent of plaintiff to the settlement might not be a valid defense for defendant, nevertheless no right of action accrued to plaintiff unless the settlement was made without his consent and by the express terms of the statute a cause of action did accrue to him if the settlement was made by defendant without his written consent. It is therefore entirely clear that plaintiff grounds his right of recovery on the fact that the settlement was made by defendant with his client, Clara M. Tucker, without his written consent. Indeed, recognizing such to be essential to his right of recovery, plaintiff by negative averment in his petition, avers the settlement was made without his written consent. But though he negatives the fact by averment, no proof whatever was given thereon and the matter was equally within his knowledge as within that of defendant. Generally speaking, the burden of proof lies with the party holding the affirmative of the issue, but there is an exception to the rule in those cases where the plaintiff grounds his right of action upon a negative allegation, and this exception obtains alike in both civil and criminal cases. [See 1 Greenleaf on Evidence, sec. 78.] It is true though plaintiff's petition in a civil suit or the indictment in a criminal case contains a negative averment, the plaintiff or prosecutor is not required to prove the negative in those cases where the knowledge of such fact lies peculiarly with the defendant. Such is the rule in criminal cases where one is prosecuted for selling liquor without license; for, if the defendant has a license, it is a matter which as between him and the prosecuting officer, lies peculiarly within his knowledge and therefore is easily susceptible of proof by defendant through the mere production of the license, while the prosecuting...
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