Woodruff v. Rusk

• Decision Date: 13 November 1934
• Parties: GEORGE WOODRUFF, DEFENDANT IN ERROR v. WILLIAM RUSK AND QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY
• Court: Kansas Court of Appeals

76 S.W.2d 709

229 Mo.App. 119

GEORGE WOODRUFF, DEFENDANT IN ERROR v. WILLIAM RUSK AND QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY

Court of Appeals of Missouri, Kansas City

November 13, 1934

Error to the Circuit Court of Grundy County.--Hon. A. G. Knight Judge.

Judgment affirmed.

Scott J. Miller and Roger S. Miller for plaintiffs in error.

George Woodruff pro se.

OPINION

SHAIN, P. J.

The plaintiffs in error have brought this case to this court by a writ of error, seeking to review a judgment of the trial court allowing an attorney's fee, in the case of Rusk v Quincy, Omaha & Kansas City Railroad Company, to George Woodruff the defendant in error, who claims to have been one of the attorneys for plaintiff in the above entitled case.

Rusk recovered a judgment of five thousand ($ 5,000) dollars for damages against the railroad company and the railroad company, in due time, filed its motion for a new trial. Thereafter and without notice and without knowledge or consent of Woodruff, defendant in error, Rusk compromised and settled his case and was paid by the railroad company in accordance with the settlement.

The settlement between Rusk, the plaintiff, and the defendant railroad company was for the sum of two thousand eight hundred and seventy-five ($ 2,875) dollars, which sum was paid by the defendant railroad company to Rusk, the plaintiff in said suit, and there was a stipulation filed in the case for a dismissal of the cause. This stipulation appears to be signed by the defendant in error herein, however, the showing is clearly to the effect that defendant in error was not present and did not sign.

After the settlement and filing of the stipulation, Mr. Woodruff, defendant in error, filed a motion in the case having for its purpose an allowance of an attorney fee to him for services rendered by him in the case. Thereafter, this motion coming on for hearing, the issues were tried before the court and the court found the issues in favor of Woodruff, defendant in error herein, fixing the value of his services at five hundred ($ 500) dollars. Judgment was duly entered in accordance therewith and this writ of error brings said judgment before us for review.

The facts, as gleaned from the record, are to the effect that William Rusk filed action for damages for personal injuries against the Quincy, Omaha & Kansas City Railroad Company in the Circuit Court of Grundy County, Missouri. Rusk had entered into a written contract with attorney L. P. Robinson to prosecute his suit and said contract provided that said Robinson should receive forty per cent of the amount recovered for his services in the case. There were two trials of the case, the first resulting in a hung jury.

It appears that some time before the first trial there were negotiations entered into whereby Woodruff, defendant in error herein, was engaged to help Mr. Robinson in the preparation and trial of the case.

The issue involved, in the matter now before us, is as to whether Mr. Woodruff was employed by Mr. Robinson under a special contract or was the employment of such a general nature as to obligate Mr. Rusk for payment for Mr. Woodruff's services or give him a lien on the judgment.

There is no dispute as to the nature and kind of services performed by Mr. Woodruff. He interviewed witnesses, looked up the law, helped to prepare instructions and was active in the conduct of the first trial wherein there was a hung jury. After the mistrial he was active in preparing an amended petition. The case at the second trial was tried upon this amended petition and Mr. Woodruff's name appeared thereon as one of the attorneys for the plaintiff. Mr. Rusk, in his testimony, admits that Mr. Woodruff went with him to the Quincy, Omaha & Kansas City Railroad right-of-way and examined some ties and further testified that he knew Mr. Woodruff went out to the place where Mr. Rusk was injured and discussed with gentlemen how the tie fell on Mr. Rusk. Rusk further testified that Woodruff had gone with him and his father and Mr. Robinson to the scene of the accident and made suggestions about taking pictures.

It appears that, sometime prior to the second trial of the Rusk case, Mr. Robinson died. After Robinson's death Mr. Rusk went to Chillicothe, Missouri, and entered into a written contract with attorney Scott J. Miller to prosecute his suit and therein agreed to pay to Mr. Miller fifty per cent (50%) of the amount recovered as reimbursement for his services in the case. Thereafter, the cause came on for trial and Mr. Miller requested Mr. Woodruff to sit in the case, which he did, and it is shown that Mr. Woodruff, while not taking as active a part as he did in the first case, did render service in the trial wherein a five thousand ($ 5,000) dollar judgment was had in favor of Mr. Rusk. Mr. Woodruff testified that, upon the railroad company filing a motion for new trial, he looked up law on points raised; as to the matters of stipulations and settlement he was not consulted and was ignorant of all said matters until he received a check from Mr. Miller for one hundred ($ 100) dollars purporting to be for his fee in the case, which check he refused to accept and deposited same in court when he filed this motion.

As to the employment of Mr. Woodruff in the case, the testimony of Mr. Rusk is to the effect that shortly before the first trial he, Mr. Robinson and Mr. Woodruff were in Robinson's office and Mr. Robinson said: "He had got Mr. Woodruff to help him in the case." Mr. Rusk admitted, upon cross-examination, that he and Mr. Robinson on one occasion had gone to Chillicothe and attempted to hire Davis and Ashby to assist. The purport of Mr. Rusk's oral testimony is plainly to the effect that he never personally employed Mr. Woodruff. However, his...