Yonge v. St. Louis Transit Co.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 184,109 Mo. App. 235
• Parties: YONGE v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Court of Appeals

84 S.W. 184

109 Mo. App. 235

YONGE v. ST. LOUIS TRANSIT CO. et al.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

ATTORNEY AND CLIENT — STATUTORY LIENS — PRIVATE SETTLEMENT — ORIGINAL ACTION — DISMISSAL — CONTINUANCE — VERDICT OR JUDGMENT — NECESSITY — ACTION AGAINST DEFENDANT.

1. Sess. Acts 1901, p. 46, § 2, declares that it shall be lawful for an attorney in all actions or proposed actions to contract with his client for a percentage of the proceeds of any settlement, etc., and on notice in writing to defendants, or proposed defendants, thereof, said agreement shall operate from the service of the notice as a lien on the claim or cause of action and on the proceeds of any settlement, and cannot be affected by any settlement between the parties. Held that, where an action was brought against a defendant to enforce an attorney's lien and to recover his proportion of a private settlement under such section, it was not necessary to plaintiff's recovery that there should have been a verdict, report, decision, or judgment in his client's favor.

2. Sess. Acts 1901, p. 46, § 2, creates a statutory attorney's lien for his services, before or after suit brought, from notice of the attorney's claim to defendant, which is not affected by any private settlement between the parties, and declares that if the defendant, without first procuring the written consent of the attorney, shall settle with the client, he shall be liable to such attorney for his lien on the proceeds of the settlement, as per the contract existing between the attorney and client. Held, that where a private settlement was made between the parties to a suit, notwithstanding defendant had notice of the lien of plaintiff's attorney on the cause of action, such attorney was entitled to maintain an independent action in his own name, against the defendant, to recover his contract proportion of the settlement, regardless of his client's ability to respond.

3. Under Sess. Acts 1901, p. 46, § 2, creating an attorney's lien on his client's cause of action, and providing that, on settlement without the attorney's written consent, defendant should be liable to the attorney for his contract proportion of the settlement, the attorney, in case a private settlement is made, notwithstanding his notice, having a cause of action against the defendant, is not entitled to continue the prosecution of the original suit for the purpose of recovering the amount of his demand, nor bound to interpose against the dismissal thereof.

Error to St. Louis Circuit Court; J. A. McDonald, Judge.

Action by H. A. Yonge against the St. Louis Transit Company and others. From a judgment in favor of defendants, plaintiff brings error. Reversed.

John M. Dickson, for plaintiff in error. Boyle, Priest & Lehman, for defendants in error.

GOODE, J.

A car belonging to the St. Louis Transit Company ran over and killed Frank Hagan, at that time the husband of Annie Hagan. The accident occurred March 1, 1902, on Pine street in the city of St. Louis. The widow entered into a written contract with plaintiff, Yonge, June 10, 1902, by which she employed him to prosecute her claim for damages for the death of her husband against the United Railways Company and the St. Louis Transit Company. The contract contains, among other clauses, these:

"Now, therefore, in consideration of the agreement of said party of the second part to prosecute said action for damages to final judgment against the said United Railway Company and St. Louis Transit Company, the said party of the first part hereby agrees to pay to him as full compensation for such services, thirty-three and one-third per cent of all money that shall be recovered in said cause, either by a compromise of the same before judgment or after a final judgment shall have been obtained against the said United Railway Company and St. Louis Transit Co.

"That this contract for attorney's fees shall be a lien upon all money due or payable to said party of the first part by the said United Railway Co., and St. Louis Transit Co., for or in consideration of the death of the said Frank Hagan, for the percentage of the same as herein stated.

"That if a compromise of said claim for damages shall be made, no agreement of settlement shall be binding upon the parties hereto without their mutual consent."

Yonge filed suit in the name of Mrs. Hagan against the two companies June 11, 1902, on which day a summons issued, returnable to the October term of the circuit court. On the date of the contract Yonge served a copy of it on Murray Carleton, the president of the Transit Company and of the United Railways Company. On August 21, 1902, Mrs. Hagan entered into a written stipulation with the two companies who were defendants in her damage suit, as follows: "The above named plaintiff hereby acknowledges that the above stated cause has been fully settled, and hereby authorizes the dismissal of said cause at the cost of the plaintiff." The cause referred to was the action Yonge brought in Mrs. Hagan's name to recover damages for the death of her husband. The stipulation was filed in the circuit court October 15, 1902. The settlement was made without Yonge's consent, and he had no knowledge of it until the filing of the stipulation, or a short time before. The defendants paid Mrs. Hagan $900 in settlement of her case, and it was dismissed pursuant to the stipulation. Afterwards Yonge brought the present suit against the two companies to recover one-third of the sum they had paid Mrs. Hagan, founding his action on his contract and the statutory provisions for securing and enforcing attorneys' liens arising out of contract. The petition stated the facts substantially as we have given them. The answer was a general denial.

Yonge has never been paid any compensation by his client. The evidence shows that a man named Neustadt conducted a business under the name of the "Central Law Bureau"; that he advertised under that name as an adjuster of claims, and also solicited divorce suits. Yonge sometimes acted as his attorney, under an agreement for a division of the fees. Mrs. Hagan had intrusted her claim against the two companies for the death of her husband to Neustadt for settlement. Neustadt called Yonge's attention to the claim, and Yonge drew the contract employing him as attorney, and sent it by J. W. Tucker to Mrs. Hagan to be signed, and she signed it. Yonge swore he paid Tucker for this service, that no one had any interest in the contract but himself, and he did not bind himself to share the proceeds of the contract with any one else. Defendants introduced no testimony. At the conclusion of plaintiff's testimony, which brought out the facts we have recited, the trial court found the facts as follows:

"This action is brought by one H. A. Yonge, an enrolled attorney of the court, under the act of February 25, 1901 (Laws 1901, p. 46), to recover from the St. Louis Transit Company and the United Railways Company a sum equal to one-third of the amount paid by the St. Louis Transit Company to Annie Hagan in settlement of her claim for damages on account of the death of her husband, Frank Hagan. On the 1st day of March Frank Hagan was struck and almost instantly killed by one of the defendant companies' cars operated on Pine street.

"It appears from the evidence that Walter Neustadt, with the assistance of Yonge and several nonprofessional employés, was conducting a divorce and damage suit business in an office adjoining and opening into the room occupied by Yonge as a law office. They used the name `Central Law Bureau' in the conduct of the business, and for several years Neustadt had inserted in the public press daily advertisements inviting divorce suits and other business, with the following fraudulent, despicable, and contemptuous representations:

"`Attorneys at Law — Divorces obtained promptly, quietly; moderate charges; collections made; damage cases handled; advice free. Central Law Bureau, 113 North Eighth street.'

"This advertisement was framed, according to Yonge's testimony, to induce people to visit the Central Law Bureau `who would not otherwise come.' When persons contemplating divorce proceedings, or led to a contemplation of such proceedings by that fraud, engaged the services of the Central Law Bureau, Yonge would take two-thirds to three-fourths of the profits of the suit, and leave the remainder to Neustadt. The profits of all the business of this Central Law Bureau that required a lawyer's counsel to transact, Yonge and Neustadt divided, in the language of Yonge, `by agreeing what interest he [Neustadt] shall have in it, and what interest I have in it.' The further statement of Yonge that: `In this particular case there was no agreement or understanding; in all cases we have an arrangement; in this case he [Neustadt] has no interest whatever' — is so impossible, in view of all the facts and circumstances and conflicting statements in evidence, that I reject it entirely.

"It is admitted that the Central Law Bureau discovered Mrs. Hagan's claim, pursued her for it, and undertook to induce the St. Louis Transit Company to admit liability to her and adjust her damage. The Central Law Bureau collected the evidence from witnesses, and, failing to persuade the St. Louis Transit Company to make any voluntary payment in compromise of the claim, turned it over to Yonge for suit. True, he states that the Central Law Bureau retained no interest in the claim. In view of his unsatisfactory testimony relative to the matter and his conflicting statements, I do not regard this statement as worthy of credit. I do not believe there was any variation from Yonge and Neustadt's regular and long-established course of business in this case; and had the litigation proceeded to judgment, and Yonge collected a fee for the services rendered by him and the Central Law Bureau, the latter would have shared therein. Subsequent developments made it convenient for...