Blackwood v. Maryland Casualty Co.

150 So. 180, 227 Ala. 343, 1933 Ala. LEXIS 284

• Court: Supreme Court of Alabama
• Decided: June 9, 1933
• Docket: 7 Div. 185.
• Status: Published

Opinions

BOULDIN, Justice.

The facts found by the Court of Appeals in the opinion now presented, incorporating by reference the facts recited in the former opinion (Blackwood v. Maryland Casualty Co., 24 Ala. App. 527, 137 So. 467), disclose that the attorney of the insured agreed in writing “that the action of the” insurer, “in participating in said trial and in representing the defendant” the insured “was not and should not be a waiver of the right of the” insurer “to claim and rely upon the want of co-operation of the” insured “as a valid defense to any liability of whatsoever kind of the” insurer “under the policy of insurance,” a liability or indemnity policy.

This was no agreement that the policy had been forfeited by non co-operation. That question was left open to be litigated on its merits if and when such question should arise. So such agreement was not a surrender of any right of the insured in existence when the agreement was made. But a stipulation that, by continuing in the case for the defense of both the insurer and insured as against the plaintiff in that action, the insurer would create no new right in favor of the insured by way of estoppel.

“An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such cause, made in writing.” Code, § 6253.

“We do not think the effect of this statute is to invest the attorney with power over the entire cause equal to that of his client, but to invest him with authority to bind his client in all matters which relate to the prosecution or defense of the rights of his client, to collect and receipt for him, to sue out and direct process, to make all such preliminary agreements as he may deem necessary to lead to or secure a trial of the cause, and settle, by agreement or waiver, any and all questions which incidentally arise during the progress of the trial.” Senn v. Joseph, 106 Ala. 454, 457, 17 So. 543.

See, also, Norman v. Burns, 67 Ala. 248; Ex parte Hayes, 92 Ala. 120, 9 So. 156; Charles v. Miller, 36 Ala. 141.

“Subject to the rule that an attorney cannot compromise his client’s case or surrender his substantial rights, an attorney may make any agreement or stipulation which appears, in the progress of the ease, to be necessary or expedient for the advancement of his client’s interest; and this right, it seems, is exclusive as far as it applies to stipulations relating purely to the management of the case in court.” 6 C. J. pp. 647, 648, § 156, and full array of authorities in notes 58 and 59.

Our late cases are not intended to overturn the rule of Senn v. Joseph, supra, which is cited as authority therein.

The agreement of counsel here related directly to the conduct of the cause, surrendered no substantial right of the defendant, but secured the services of counsel for the insurer on behalf of defendant, upon agreement that such action should be without prejudice to the insurer — should not raise up a new estoppel against the insurer setting up the true status as to non co-operation when occasion should arise.

The agreement in question was within the lawful powers of the attorney as such, without any proof of express authority conferred by his client.

The Court of Appeals erred on the first appeal. The result of the decision on the present appeal is correct, but it is based on erroneous grounds.

The writ of certiorari is therefore denied.

Writ denied.

GARDNER, THOMAS, and KNIGHT, JJ., concur.