Youngman v. Miller

Mr. Justice Mercur

delivered the opinion of the court,

This suit was to recover for the professional services of the plaintiffs as attorneys at law. The services were rendered in a suit wherein Henry Miller by his next friend, Adam Miller, was plaintiff, and one Cole was defendant. Henry was a minor son of Adam and aged eight years. Cole was the proprietor of a traveling circus. The action was to recover for personal injuries sustained by Henry while the circus company was passing through the streets of Williamsport.

The evidence is that the defendant in the present case went to the office of the plaintiffs, stated the injury, and that he was a poor man who had no money to spend in litigation with Cole. The plaintiffs were not certain that anything could be collected. The. conclusion was that Miller pay a small retaining fee of $5 or $10, and the plaintiffs were to have a conditional fee of one-half the sum collected. The evidence was conflicting whether it was to be one-half the amount collected in a suit in favor of the son, or in one in favor of the father, or in suits in favor of each. Suit in favor of the son in the form stated was immediately commenced, and no other suit was brought. The suit instituted was prosecuted to verdict, and a judgment for $287.50. The defendant in error then assigned one-half the judgment to the plaintiffs. Execution afterwards issued, the money was collected and paid into court. After this the defendant Miller was appointed guardian of his said son, drew the money out of court, and refused to pay the plaintiffs the one-half thereof, or a sum equal thereto.

In so far as the question related to in what suit or suits, the plaintiffs were to have one-half of the sum recovered, there is no just cause of complaint against the charge of the court; but another view was presented. Conceding the contract to have been that a suit should afterwards be brought in the name of the father ; yet the plaintiffs claimed they were released from that obligation by reason of the defendant having settled his claim against Cole. The court impliedly, but not very distinctly, instructed the jury, if the defendant had so settled, it relieved the plaintiffs from bringing another suit, but substantially indicated it was a fact in dispute, and was for the jury to find whether or not such settlement was made. A reference to the evidence shows the settlement was clearly proved. The defendant was sworn as a witness in his own behalf. The judgment was collected on a test. fi. fa., which he carried into another county where Cole then was, and there a settlement was made between' Cole and the defendant, by which the latter received $10. When the defendant was first interrogated thereto in his examination in chief, he left it somewhat uncertain whether he had settled his claim. On his re-direct examination the following questions and answers remove all doubt. Question : “Was that paid to you for expenses, or was it paid to you to settle ?” Answer: “ It was paid for me to settle the amount of my claim. Mr. Cole told me that he was not going to give me anything. I says, I only ask you for so much, and then I settle the whole matter right up here for myself ; and then he went to the ticket wagon, and wrote the receipt and gave me $10, and I signed the receipt. That was what I was to get.” He also stated that included his expenses. On cross examination he testified substantially that he settled without -the knowledge or advice of his attorneys. Thus there was no question that the defendant did settle iris whole claim for damages. It was a fact alleged by the plaintiffs and distinctly sworn to by the defendant. There was no evidence to the contrary.

If at the time of their employment, the plaintiffs were instructed to bring two suits, or if it was understood that two suits should then be brought, one in the name of the father alone, to recover his damages, it was undoubtedly the duty of the plaintiffs to bring them. Without such instructions or understanding' no legal obligation was imposed on tliem to bring another suit at the same time. The learned judge therefore erred in charging the jury as to the measure of the legal duty imposed on the plaintiffs, in saying, “In the absence of any arrangement between them about bringing one suit, or two suits, they were bound under the the circumstances of the case to have brought two suits. That was their plain duty — otherwise they could not recover all the damages that they were entitled to for this injury.” ILe further added, “ That, then, was the duty of the attorneys at the time this contract was entered into.” It is true, without a suit in the name of the father, all damages sustained might not be recovered ; yet it does not necessarily follow that the plaintiffs were required to commence it at that time. The uncertainty of any recovery may well have made the defendant unwilling to risk the liability for costs in another suit until his exemption therefrom in one was established. As the injury had just been inflicted on the son, the plaintiffs may very wisely have thought it not advisable to bring suit in the name of the father until he had incurred some expense for medical attendance, medicine, or nursing of the child. The evidence does not show that the defendant ever complained of the omission' to bring such suit until on the trial of this case. In the absence of any evidence to that effect, it will not be presumed that the plaintiffs were obligated to 'pursue Cole into another county and there bring suit.

Whatever the specific terms of the agreement may have been, the plaintiffs were employed by the defendant alone. He did not profess to bind his infant son. They did not agree to look to the son for payment. They rendered valuable services. The court said to the jury there was “ no allegation by either defendant or his counsel that plaintiffs had not done their full duty in the suit against Mr. Cole, and recovered full damages.”

The uncontradicted evidence of the plaintiffs is, that independent of any contract for a contingent fee, the amount claimed is no more than a reasonable compensation for the services performed.

In addition to the specific errors we have stated, the general tenor of the charge inadequately presented the case to the jury, and manifestly misled them as to the true points of inquiry, and to the prejudice of the plaintiffs.

In so far as portions of the charge are in conflict with this opinion the assignments are sustained.

Judgment reversed and a venire facias de novo awarded.