Elk Valley Coal Mining Co. v. Willis , 149 Ky. 449 ( 1912 )

Opinion of the Court by

Judge Winn

Reversing.

Frank Alexander, an infant, through L. E. Alexander, his father, as his next friend, in March, 1911, -sited the Elk Valley Coal Mining Company ■ to recover fob personal, injuries-suffered by him while laboring-in'the company’s coal mine. Appellees, Willis & Meredith, attorneys, filed the petition. By contract made with the next friend, they were to have as their fee a snm equal to fifty per cent of the amount recovered by suit or otherwise. Upon the day in April when the case was to be tried, the company compromised the claim with the plaintiff. L. E. Alexander qualified as the guardian of the infant plaintiff, and executed the settlement papers. The company set up the settlement by answer, stating that the sum paid in compromise was $250. A receipt for this sum, signed by the guardian, stating in terms that it was a full accord and satisfaction of the entire claim, was exhibited with and relied on in the answer. The settlement was made without the knowledge of Willis & Meredith. Conceiving that the document signed by the guardian did not state the whole or true consideration paid by the company, they set about ascertaining the facts with the purpose of collecting a fee for their services. On July 8th, they filed an intervening petition in the action, in nature for a judgment against the company for their fee under the lien allowed by section 107, Kentucky Statutes. The recovery was not sought upon the contingent fifty per cent contract, but upon a quantum meruit. It was charged that $250 was not the whole consideration paid, but that in addition, a house and lot was to be conveyed the infant plaintiff, other money to be paid to or for him, and permanent employment afforded him by the company. This the company denied; and then pleading the $250 as its full settlement, and the fifty per cent fee contract, offered to pay $125 and the costs as its full liability to Willis & Meredith. Willis & Meredith admitted the percentage contract, but asserted that it was void as beyond the power of the next friend to make. Issue being joined, a jury trial resulted in a verdict of $1,150 in favor of Willis & Meredith against the company, and it appeals.

The evidence developed without conflict that in addition to the $250 in cash paid to the guardian, a small house and lot worth from $200 to $250, was to be conveyed by the company to the boy. The company insisted that this was the sole and entire consideration for the settlement, while Willis & Meredith insisted that there was an additional consideration, in nature an undertaking by the company to give the boy lasting employment. There was enough of testimony introduced to take the case to the jury upon this issue of fact. Upon the trial Willis & Meredith, admitting the existence of the fifty per cent contract, insisted that it was void, and that they were entitled to recover upon a quantum meruit, no matter whether the amount paid in settlement were certain or uncertain; while the company insisted that the recovery should he limited hy the contract to fifty per cent of the amount paid. The court instructed the jury solely upon a quantum meruit, apparently upon the idea that an infant’s next friend had not the right to make a valid employment of an attorney for him. At the time of the trial, the case of Sanders v. Woodbury, Guardian, et al., 146 Ky., 153, had not been written. That case settled it that such a contract is valid, subject alone to the court’s determination of whether the agreed fee be reasonable. Now, it was in evidence that the fifty per cent damage suit contingent contract fee was a customary and reasonable one in that community. Upon the company’s theory, therefore, that the $250 and the house and lot were the sole considerations paid, an instruction in substance as follows, should have been submitted to the jury:

“No. 1. If the jury believe from the evidence that the consideration for the settlement of the suit of Frank Alexander against the Elk Valley Coal Mining Company was $250, and the house and lot named in the evidence, and no more, they will find for Willis & Meredith against said company in the sum of $125, and in the further sum of one-half of the value, as they may ascertain same from the evidence, of said house and lot at the time of said settlement, and no more.”

Coming now to the other side of the question. This court has determined that a contract for permanent employment is a good consideration for a settlement of a personal injury claim; and that where, coupled with the payment of a negligible sum of money such an undertaking is entered into by the compromising defendant, the amount of compensation becomes so uncertain as that the plaintiff’s attorney should not be restricted to his contract contingent per centum of recovery, but should recover upon a quantum meruit. Proctor Coal Co. v. Tye & Denham, 123 Ky., 381. But here we have a different state of facts presented. Instead of a sum of irioney so small as to be inconsequential, as in the Proctor Coal Company case, there was paid money and realty of the admitted value of from $450 to $500. When wé consider that the sum paid to- the hoy was from $450 tip $500, of which sum Willis & Meredith must recover from the defendants at least one-half, it cannot be said, as in the Proctor Coal Company case, that the amount recoyered for their client was so uncertain in value as to wárrant a recovery upon a quantum meruit, and not upon the contract. And yet, if their theory of the case, which they are entitled to have submitted to the jury, be .true, they are entitled to recover something more; ¿nd that is, one-half of the value of the boy’s contract íqr permanent services — this to be awarded, of course, only in the event that the jury should find as a matter of fact that the giving of such a contract to the boy was á pprtion of the consideration paid to him. Upon this i^sué, therefore, the court should have instructed the jury in substance, as follows: ■

, “No. 2. If the jury believe from the evidence that in addition to the payment of said $250 and said house and lot, the Elk Valley Coal Mining Company, in settlement of said suit of Prank Alexander against it, agreed to give him permanent employment, they will find for Willis & Meredith against said company, in addition to the sum which.they may find for them under the first instruction, such sum- as they may find from the evidence to be equal to one-half of the value of said contract for permanent employment to said Prank Alexander at the time of the making of • said settlement; but the total sum which the jury may find for said Willis & Meredith under both the first and second instructions shall not exceed the sum of $2,500, the amount named in the petition.” .

The $250- paid by the company to the physicians who attended upon the boy, was paid in discharge of a direct obligation owed by the company. It employed the- physicians at the time of the accident. The boy owed them nothing. The company’s discharge of this, its own debt, was no part of the consideration paid in compromise of the suit. There was not enough of testimony to embrace the year of schooling in the last set out'instruction, nop the employment of the father; even if. the .-latter could properly be considered a payment to the son."

r The instructions. set out allow a recovery upon the dontract employment, a manner of recovéry not sought by Willis & Meredith in their petition; but this theory of the parties’ rights was brought forward by the defendant's answer, and issue joined upon it. It was right, • therefore, to instruct the jury upon it. B & O. S. W Ry. Co. v. J. A. Wood & Co., 130 Ky., 839.

The judgment is reversed and cause remanded for a hew trial consistent herewith.