FIRST OF GEORGIA INSURANCE COMPANY v. Horne , 120 Ga. App. 379 ( 1969 )

120 Ga. App. 379 (1969) 170 S.E.2d 452

FIRST OF GEORGIA INSURANCE COMPANY
v.
HORNE.

44462.

Court of Appeals of Georgia.

Submitted May 6, 1969. Decided September 2, 1969. Rehearing Denied September 24, 1969.

Westmoreland & Patterson, J. Wayne Moseley, for appellant.

John J. McCreary, Robert S. Horne, for appellee.

BELL, Presiding Judge.

The appellee, an attorney, sued appellant seeking recovery for attorney's fees allegedly earned when a claim for damages to an automobile was paid. Appellant had a subrogated interest in the sum received. Appellee had represented the plaintiff (appellant's insured for property damage and to whose interest for that damage appellant was subrogated) in her suit for personal injury and other damages on a 1/3 contingency fee basis. Appellee contends that he is therefore entitled to a 1/3 contingent fee from appellant because the property damage was recovered through his efforts. In testifying on the trial appellee admitted that he had no contract with appellant either written or oral. The transcript reveals no contract between them either express or implied. The trial resulted in a verdict and judgment against appellant for the attorney's fees plus an additional sum because of appellant's bad faith and stubborn litigiousness. Held:

The relationship of attorney and client is a contractual one. The transcript here reveals there was no contract of employment of the attorney for the purpose for which the attorney's fees sued for were claimed. In that posture he was a mere volunteer and cannot recover. Thus this case is controlled adversely to the appellee by Commercial Union Ins. Co. v. Scott, 116 Ga. App. 633 (158 SE2d 295). The evidence having demanded a verdict for the appellant, the trial court erred in denying its motion for judgment notwithstanding the verdict.

Judgment reversed with direction to the trial court to enter judgment for the defendant. Eberhardt and Deen, JJ., concur.