Cain v. Tuten

60 S.E.2d 485, 82 Ga. App. 102, 1950 Ga. App. LEXIS 1062

• Court: Court of Appeals of Georgia
• Decided: July 13, 1950
• Docket: 32843
• Status: Published

Opinions

MacIntyre, P. J.

The motion to dismiss the writ of error is denied. A bill of exceptions reciting that the court erred in sustaining the general demurrer, and that “to this ruling sustaining said general demurrer and dismissing the plaintiff’s petition, plaintiff then and there excepted and now excepts and assigns the same as error upon the ground that the same was contrary to law,” contains a sufficient assignment of error where the demurrer itself appears in the record. Greene v. Orr, 75 Ga. App. 673, 674 (44 S. E. 2d, 273), and cit.

“Where there is an agreement for the payment of a contingent fee, the happening of the contingency is a condition precedent to the right of the attorney to recovery for his services, and the precise event which was contemplated must happen. Moses v. Bagley, 55 Ga. 283; Twiggs v. Chambers, 56 Ga. 279; 6. C. J. 743, § 319 (3).” Byrd v. Clark, 170 Ga. 669 (153 S. E. 737); Thomas v. Postell, 77 Ga. App. 784 (49 S. E. 2d, 835); Lewis v. Van Valkenberg, 192 Ga. 272 (15 S. E. 2d, 233); Horton v. Farmer, 57 Ga. App. 759 (196 S. E. 112). According to the allegations of the petition the defendant (the attorney) was employed by the plaintiff (the client) “for the purpose of securing and collecting a proper award . . [He] was employed to collect and turn over to . . [.the plaintiff] all that he was rightfully entitled to by reason of . . [his] injuries.” It is also alleged that the defendant “agreed to represent . . [the plaintiff] for one-third of the amount of recovery awarded by the State Board of Workmen’s Compensation.” Under these alleged terms of the contract, it was the defendant’s duty to represent the plaintiff before the board and collect “all that the plaintiff was rightfully entitled to,” and the defendant’s fee was not earned, nor the attorney-client relationship terminated, until the award made by the board had been collected and turned over to the plaintiff. See, in this connection, Wilson v. Maryland Casualty Co., 71 Ga. App. 184, 187 (30 S. E. 2d, 420), wherein this court, in construing a contract of employment between a claimant under the Workmen’s Compensation Act and his attorney, held that the provision of that contract that the attorney was to receive “one-third of any sum recovered” meant any sum actually received by the claimant, and did not mean one-third of any sum awarded by the board. Whether it was understood by the plaintiff alone, as the trial court construed the petition, or whether it was agreed between the plaintiff and the defendant as a part of the contract that the plaintiff was “to receive any monies due-him by the terms of such award in one lump sum,” is of no significance. Whether the claimant received the money under the award in weekly payments or in one lump sum, the alleged contract imposed the duty of collecting the money upon the defendant, and nothing more appearing, a failure to collect the money constituted a breach of his duty under the contract and until the plaintiff received the money, the defendant had not earned his fee. Under the allegations of the petition, the defendant did .not collect the major portion of the award, and, moreover, he sought to defeat the plaintiff’s collection of it by writing the Highway Department “that to his (the defendant’s) information, the plaintiff is not in bed any longer and in justice to everybody .concerned, I had rather you take the responsibility,” and by returning the money to the department. Whether his action in so doing was praiseworthy or otherwise, it is not for us to say here. It remains that until the plaintiff received the money the defendant- was not entitled to his fee, notwithstanding it had already been paid in advance. True, the money was collected, but not through the services of the defendant. The petition set forth a cause- of action, for the breach of duty imposed by the contract is the cause of action, and not the consequential damage resulting from such breach. Whether or not the fee of $25 paid to, -the attorney who collected the money for the plaintiff has been ’approved by the State Board of Workmen’s Compensation, the failure of the board to approve the latter fee would serve as no shield to the defendant. The statute requiring the board to approve attorneys’ fees was intended to protect the claimants under the act, not the attorneys.

The petition does not set forth a cause of action .for fraud as it does not appear that the plaintiff was defrauded by the defendant. It appears affirmatively rather that the plaintiff refused to be “taken in” by the allegedly fraudulent demands of the defendant.

While exemplary damages can never be allowed in cases arising on contracts (Code § 20-1405) the petition set forth a cause of action for special damages and the court erred in sustaining the general demurrer to the petition.

Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.

Judgment reversed.

Felton and Townsend, JJ., concur. Sutton, C.J., concurs in the judgment. Gardner and Worrill, JJ., dissent.