Wolf v. United Railways Co.

133 S.W. 1172, 155 Mo. App. 125, 1911 Mo. App. LEXIS 210

Opinions

NORTONI, J.

This is a suit under the attorney’s lien statute for compensation from defendant on account of services rendered by plaintiff attorney to his client in a cause which was settled by defendant without the alleged written consent of plaintiff. Plaintiff recovered and defendant prosecutes the appeal.

It appears plaintiff is an attorney at law engaged in the practice of his profession in the city of St. Louis and as such was employed by Clara M. Tucker to prosecute a claim for damages which accrued to her through a negligent injury inflicted while she was a passenger on defendant’s car. While Olara M. Tucker was a passenger on defendant’s street car, she suffered an injury through the negligent derailment of the car and employed plaintiff attorney, by a contract in writing, to prosecute her claim and collect damages from defendant through a suit at law or settlement and agreed to give him fifty per cent of the amount reovered, as compensation for his services. In due time, plaintiff served a notice of his employment upon defendant street car company and about this fact there is no controversy. Some time thereafter, defendant settled the claim of Glara M. Tucker with her in person and took a release and acquittance of her cause of action, for which it paid her the sum of $500. Thereafter, plaintiff instituted this suit against defendant under the attorney’s lien statute, seeking to recover from defendant as his compensation $250, or one-half the amount if had paid to his client, on the theory that defendant had settled the cause of action without his written consent, in disregard of the statute. The attorney’s lien statute referred to gives an attorney at. law a lien upon his client’s cause of action and authorizes contracting for a contingent fee of a percentage of the amount recovered by suit or settle- meat. The statutes referred to are sections 964 and 965, Revised Statutes 1909. It is provided in the section last cited that upon an attorney contracting with his client for services in such cases, he may serve a notice in writing upon the party against whom the claim is asserted as to the fact of his employment and the amount of the compensation he is to have, and that the agreement with his client shall operate from the date of such service as a lien upon the claim or cause of action and upon the proceeds of any settlement between the parties either before suit or action is brought or before or af: ter judgment thereon. It is further provided therein That if any defendant or proposed defendant with respect to such claim, after notice served by the attorney, settles the same with the client or claimant, without first procuring the written Consent of such attorney, it shall be liable to him for such attorney’s lien upon the proceeds of the settlement as per the contract existing between the attorney and his client. Under this statute, it is the rule of decision that through the act of settling a cause of. action with the attorney’s client after proper notice of his contract of employment' and without his written consent, the law raises an obligation on the part of the party so settling the claim or cause of action to recompense the attorney in accordance with the amount stipulated for in the contract with his client and such claim may be enforced in a suit by him against the settling defendant. [O’Connor v. St. Louis Transit Co., 198 Mo. 622, 97 S. W. 150; Taylor v. St. Louis Transit Co., 198 Mo. 715, 97 S. W. 155.] Plaintiff predicates his right of action upon the statute above referrred to and avers that though defendant had due notice of his contract of employment by Clara M. Tucker for compensation at the rate of fifty per cent of the amount recovered by her, it settled the claim or cause of action directly with her without his written consent. On the trial, plaintiff proved all of the facts essential to his right of recovery, unless it be tbe allegation contained in his petition to tbe effect that be bad not given bis.written consent to tbe settlement. On this question there is not a word of direct proof in tbe record, and so far as we have been able to ascertain after reading tbe entire evidence several times, there is a total absence of any facts or circumstances in tbe proof giving rise to a reasonable inference that plaintiff did not give bis written consent to the settlement. At tbe conclusion of tbe evidence for plaintiff, defendant moved tbe court to direct a verdict for it, but tbe request was denied and no evidence whatever was offered on its part.

Tbe principal argument advanced for a reversal of the judgment is to tbe effect that plaintiff failed to sustain tbe burden which thq law placed upon him, by introducing sufficient proof tó show a prima facie right of recovery, in that it does not appear defendant settled the caused of action with Clara M. Tucker without- bis written consent. Indeed, it is said from all that appears it may be plaintiff gave both written and verbal consent to the settlement and it did not devolve upon-defendant to prove the contrary. We believe the argument to be sound for besides tbe statute on which tbe suit predicates being in derogation of tbe common law and in its character penal, it confers a cause of action upon plaintiff in the circumstances stated only when tbe settlement, is bad without bis consent, for of course written consent is included in the broader term of consent alone. In other words, if no consent whatever is given, of course, then no written consent for the settlement was bad. Though the mere verbal consent of plaintiff to the settlement might not be a valid defense for defendant, never-' theless no right of action accrued to plaintiff unless the settlement was made without his consent and by the express terms of the statute, a cause of action did accrue to him if the settlement was made by defendant without his witten consent. It is therefore entirely clear that plaintiff grounds his right of recovery on the fact that the settlement was made by defendant with his client, Clara M. Tucker, without his written consent. Indeed, recognizing such to be essential to his right of recovery, plaintiff by negative averment in his petition, avers the settlement was made without his written consent. But though he negatives the fact by averment, no proof whatever was given thereon and the matter was equally within his knowledge as within that of defendant. Generally speaking, the burden of proof lies with the party holding the affirmative of the issue, but there is an exception to the rule in those cases where the plaintiff grounds his right of action upon a negative allegation, and this exception obtains alike in both civil and criminal cases.[See 1 Greenleaf on Evidence, sec. 78.] It is true though plaintiff’s petition in a civil suit or the indictment in a criminal case contains a negative averment, the plaintiff or prosecutor is not required to prove the negative in those cases where the knowledge of such fact lies peculiarly with the defendant. Such is the rule in criminal cases where one is prosecuted for selling liquor without license; for , if the defendant has a license, it is a matter which as between him and the prosecuting officer, lies peculiarly within his knowledge and therefore is easily susceptible of proof by defendant through the mere production of the license, while the prosecuting officer would be required to search through the records of other public offices than his own to ascertain the fact. [State v. Lipscomb, 52 Mo. 32.] For the application of the identical doctrine under like circumstances with respect to other criminal matters, see State v. Meck, 70 Mo. 355, 358. On the other hand, in a criminal prosecution against a peddler for selling goods, wares, aud merchandise not the growth, produce or manufacture of this state and without a license, though it devolved upon defendant to show his license as a fact peculiarly within his knowledge, the court declared it was for the state to prove the negative averment that the goods, wares, and merchandise were not the growth, produce or manu facture of this state; for in such case, the knowledge of the relevant fact was- not peculiarly with the defendant and it may lie as well with the one party as the other. [State v. Hirsch, 45 Mo. 429; Commonwealth v. Samuel, 2 Pick. 103.] So, too, on an indictment for coursing deer in the close of another without the consent of the owner, the court ruled the onus was on the prosecution to prove the negative averment that the consent of the owner was not first had. [Rex v. Rogers, 2 Camp. 654.] To the same effect, see Rex v. Hazy, 2 Car. & Paynes 458. In civil cases, the rule proceeds to the same effect, for it is held in a suit on a constable’s .bond for failure to return an execution that it is sufficient for plaintiff to show that the execution was delivered to the defendant constable and not essential for him to prove the negative averment that it had not been returned. The court declared the fact of the return of the execution was one peculiarly within the knowledge of defendant constable not equally open to ascertainment by plaintiff and therefore affirmative proof of the negative allegation on the part of the plaintiff was not required. [State ex rel. v. Schar, 50 Mo. 393.] See, also, People v. Nedrow, 16 Ill. App. 192; Robinson v. Robinson, 51 Ill. App. 317.] So, where the defendant railroad company was sued for laying its tracks in a public road without the consent of the county court, which is by the Constitution required to be first had in such circumstances, the court declared the burden of proof as to the negative averment was with the defendant. It is said in that case the act charged against the defendant was against the policy of the law and if it had obtained the consent of the county court in the premises it was a matter peculiarly within its knowledge as between it and the plaintiff and covenient to show, while, with the plaintiff, it was not of such easy access. [Swinhart v. St. Louis & Sub. R. Co., 207 Mo. 423, 105 S. W. 1043. To the same effect, see, Fulwider v. Gas, Light, Etc., Co., 216 Mo. 582, 116 S. W. 508.] On the other hand, in a case- where the plaintiff, a principal, sued his agent for violating his trust, to the damage of the principal and without his consent, this court declared that as plaintiff grounded his right of recovery upon the negative averment that he had not given the consent involved to his agent, the burden of proof of that fact was with him, for it was a fact not peculiarly within the knowledge of the defendant in that it was equally known to both parties. [Marshall v. Ferguson, 94 Mo. App. 175, 67 S. W. 935.] See, also, Little v. Thompson, 2 Me. 228, where the question arose on the face of the pleading. Of course, if a matter is not peculiarly within the knowledge of one party, it is presumed to be equally within that of both and, as recently said by our Supreme Court, if plaintiff grounds his right of recovery on a negative averment, he is required to prove such negative if the knowledge and power to give evidence of the fact is possessed equally as bet'ween him and the defendant. This principle is obviously, deduced from and portrayed in all of the authorities on the subject and besides possesses the indorsement of our Supreme Court in plain terms. [See Swinhart v. St. Louis & Sub. R. Co., 207 Mo. 423, 434, 105 S. W. 1043; Fulwider v. Gas, Light, etc., Co., 216 Mo. 582, 594, 116 S. W. 508; 1 Greenleaf on Evidence, sec. 78.]

Though defendant had knowledge of the written, consent of plaintiff to the settlement, if such was given, its knowledge in that behalf was not peculiar to itself as between it and the plaintiff, for he equally knew the fact. In other words, plaintiff knew whether or not he had given his written consent to the settlement and might have adduced all of the evidence necessary on the subject by the mere statement that no such consent was given. He was a witness on the stand and the matter was as convenient, if not more so, to be given in evidence by him as on the part of defendant, who, of course, would be called upon to search for and produce the writing to the end of proving the fact. However, the matter is not to be determined as if the fact were peculiarly within the knowledge of plaintiff, for it was not; but the precise principle invoked and the one which should influence the judgment of the court is that the proof of the negative averment was equally within the knowledge of both parties. This being true, it devolved upon plaintiff to prove the fact that no Avritten consent was given for the reason that lie grounds his cause of action thereon. Besides the right asserted is in derogation of the common law and proceeds in pursuit of a penalty which the law levies against the defendant for the infraction of the statutory right of plaintiff. In respect of such matters, the law, as a rule, requires strict proof, for, though legitimate inferences are to be considered, intendments are not alloAved to aid a recovery when a penalty is pursued.

But, on this feature of the case, it is to be distinguished from those where the defendant is charged with doing an unlawful act under a negative averment as without license, for here, instead of the act charged being unlawful in the general sense of the word, it is violative of the rights of one individual, the plaintiff. In other words, the act of settling a lawsuit is commendable and therefore favored by the policy of the law in the broad sense of that term, for it promotes the peace and repose of society as a whole, though the averred circumstance of settling the causé of action Avitbout the written consent of the attorney violated the rights of an individual member of the social compact- and vested a cause of action in him. However, this discussion is beside the case, as the precise situation presented is one where the plaintiff grounds his cause of action on a negative averment, the knowledge of which is obviously not peculiar to defendant for the fact so negatived is equally known to both and quite as susceptible to proof by plaintiff, if not more so, than by defendant. In such circumstances, all of the authorities reflect the proposition that the onus is on the plaintiff, as stated by our Supreme Court in the cases cited, supra.

There can be no doubt that facts and circumstances in proof may afford reasonable inferences which supply deficiencies that otherwise appear. Because of this, though there is no direct testimony that plaintiff’s consent was not given, we would nevertheless sustain the judgment if any collateral facts or circumstances in evidence afforded a reasonable inference to that effect; but after carefully reading all of the evidence several times, we are unable to deduce a single legitimate inference therefrom to sustain the verdict on this score. The nearest the plaintiff comes to saying anything about this matter is when he states he received none of the money paid by defendant to his client. Of course, conceding this to be true, it affords no inference whatever that he had omitted to give his written consent to the settlement and defendant introduced no proof which aided the cause for plaintiff. Indeed, defendant made no defense whatever and introduced no evidence of any kind. Defendant moved a direction of a verdict for it at the conclusion of plaintiff’s evidence and exceptéd to the action of the court in denying the. request. This, of course, raised the question of the insufficiency of the proof to make a prima facie case for plaintiff and on this proposition it still insists. We have been unable to discover from the record the meaning of the argument that the defense was along different lines on the trial, as though this matter were unimportant, for no defense whatever was made in the trial court. Defendant interposed an answer in the form of a general denial which operated to put plaintiff on the proof of every material fact essential to his right of recovery, and requested the court’to direct a verdict for it at the conclusion of plaintiff’s evidence on the theory that a prima facie case was not made. It is true defendant’s counsel cross-examined the witnesses and inquired about several matters suggesting plaintiff had no contract with Clara M. Tucker. This pertained to the right of recovery and was competent under the general denial but by so doing defendant nei ther waived its right to insist upon the want of substantial evidence to support the verdict nor waived its right to be heard in a court of review. As to the suggestion that the argument advanced is technical and without merit, it is to be said that the principle invoiced is fundamental on the question of the burden of proof and has come to us as a parcel of the heritage of our system of jurisprudence, which is the result of the accumulated wisdom of ages. No one may successfully say that the rules of the common law which pertain to the placing of the shifting of the burden of proof are technical, in the sense that they are unjust. In its application, the principle involved is entirely just, for it places the duty of proving the negative averment precisely where it belongs in good conscience and its integrity should not be sacrificed to aid an erring brother. It may be if this suit were by an administrator or executor instead of the plaintiff in person the onus would rest on the defendant, for in such circumstances the plaintiff, being dead, proof of the negative would lie peculiarly within the knowledge of defendant as between it and the administrator. But this question is not presented and is not decided.

Because of the failure of proof above discussed, the judgment should be reversed and the cause remanded. It is so ordered.

Caulfield, J., concurs; Reynolds, P. J., dissents.