Goss v. Spicer

169 S.W.2d 14, 293 Ky. 368, 1943 Ky. LEXIS 624

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 23, 1943
• Status: Published

Opinion

Opinion op the Court by

Van Sant, Commissioner

Affirming.

In the year 1918, appellant, D. A. Gross, was issued a policy of insurance on his life in the sum of $2500 by the Metropolitan Life Insurance Company. The policy •contained a clause providing for the payment to the insured of the sum of $25 per month during such period ■of time as he should become and remain totally disabled. He paid the premiums on this policy in advance through the year 1923. In the year 1921 he was issued a policy by the Federal Reserve Life Insurance Company of Omaha, Nebraska. This policy contained a clause providing for the payment of $50 per month to the insured should he become permanently and totally disabled. Both policies contained a clause waiving payment of the premiums upon the occurrence of permanent and total disability. In the year 1923 while both policies were in force, the insured became permanently and totally disabled. It appears that tbe insured tbrougb tbe agency of bis wife duly notified both companies of bis disability. Tbe policies were in tbe keeping of insured’s fatber-in-law and bad been placed in tbe latter’s safe, tbe combination lock to wbicb was out of order and so remained until tbe year 1936 when it was opened and tbe policies were delivered to Mr. Goss. Shortly thereafter Mr. Goss placed bis claims against tbe insurance companies in tbe hands of appellee, C. B. Spicer, an attorney at law in Harlan, Kentucky. They entered into a written contract providing for tbe payment to the attorney of an amount equal to fifty per centum of any recovery bad upon the policies. Mr. Spicer prepared and filed suits against the companies and took or caused to be taken depositions in Omaha, Nebraska, New York, New York, and Louisville, Kentucky. Tbrougb bis services the cases were settled by payment in cash of tbe sum of $5000. Tbe companies refused to pay tbe insured any sum until a committee was appointed to take charge of bis affairs. Proceedings were instituted for that purpose and insured’s brother, Ben Goss, was appointed committee. Thereupon tbe committee entered into a written contract with the insured’s attorney upon tbe same terms as that originally entered into by the insured. Tba attorney then collected tbe $5000 and in pursuance of both contracts and in tbe presence of D. A. Goss, who made no protest, tbe committee paid to Spicer tbe sum of $2500.

In January, 1939, Goss filed this action against Spicer setting out tbe above facts and alleging that at tbe time be entered into tbe contract with Spicer, be was ill, bis mental faculties impaired, and that be bad been overreached by Spicer in entering into a contract to pay him an amount equal to fifty per centum of any recovery. He further alleged that be was sane at tbe time be agreed to tbe compromise and payment made to tbe appellee, but that be was sick in body and mind and could not himself determine whether tbe settlement was advisable and that bis committee and bis attorney bad carelessly, negligently, and fraudulently entered into tbe compromise agreement. He prayed judgment against Spicer in tbe entire sum paid him in pursuance of tbe contract.

Previous to tbe settlement of tbe claims, tbe Federal Reserve Life Insurance Company became involved in its financial affairs and upon dissolution its insurance was rewritten by tbe Obio National Life Insurance of Cincinnati. Tbe latter was the company tbat compromised tbe Federal Reserve Life Insurance Company’s obligation. Upon tbe close of all tbe evidence tbe court directed the jury to return a verdict in favor of tbe defendant.

Complaint is made tbat tbe committee was not appointed in accordance with tbe procedure set out in section 2149, Carroll’s Kentucky Statutes, under which an inquiry as to Mr. Goss’s physical and mental infirmities was bad. Such complaint is a collateral attack upon tbe judgment of tbe court, which may not be entertained in this action. We find no evidence' of fraud in respect to tbe settlement made with tbe insurance companies. Tbe amount recovered was substantial, and, although Mr. Goss undoubtedly bad been permanently and totally disabled since tbe year 1923, tbe claims under tbe policies, at tbe time appellee’s services were engaged were stale. One of tbe companies with which be was insured bad been dissolved and its risks reinsured by another company. It is impossible for us to determine from tbe record submitted on this appeal what defenses were interposed by tbe insurers in tbe suits filed by appellee on behalf of appellant. It is impossible for us to determine from tbe record whether the Obio National Life Insurance Company which reinsured tbe risks of tbe Federal Reserve Life Insurance Company did so in tbe full amount of the risks or only a portion thereof. It is apparent tbat tbe insurers might have asserted many defenses and we are not in position to say tbat none of them could have been established bad tbe cases been tried on their merits. Under tbe facts shown, we are not inclined to tbe opinion tbat tbe settlement was fraudulently entered into by tbe committee and tbe attorney, Mr. Spicer. Nor do we think tbat tbe evidence discloses any overreaching of Goss on tbe part of Spicer. Tbe mere fact tbat they were good friends is not proof of overreaching and tbe fact tbat be contracted to pay an amount equal to fifty per centum of tbe recovery certainly is not in itself proof of tbe allegation. Such a contingent fee is not unusual and certainly not unreasonable for services contracted for in tbe prosecution of claims as old as these. We are of tbe opinion tbat if sane, Mr. Goss was bound by tbe contract be entered into with Mr. Spicer, and if be were incapable of managing bis own affairs, be was bound by tbe contract entered in to by Ms committee. The chancellor’s decision in respect to the fairness of tbe settlement and payment to Spicer is supported by tbe evidence that they were approved by tbe Honorable J. S. Forester, now regular judge of tbe 26th Judicial District, and appellant’s father-in-law. In addition to this advice, tbe attorney formally sought tbe advice of tbe court in regard to this settlement and tbe payment of tbe attorney fee, and a decree approving both was entered by tbe then regular judge of tbe 26th Judicial District, tbe Honorable James M. Gilbert. No doubt those proceedings were bad upon tbe advice of appellee, which fact negatives tbe contention that tbe legal services were performed in a careless or negligent manner.

Wherefore, tbe judgment is affirmed.