Howard v. McCarson , 215 Ala. 251 ( 1926 )

"When an attorney accepts a retainer to conduct a legal proceeding, he enters into an entire contract to conduct the proceedings to a conclusion, and he may not abandon his relation without justifiable cause, or the consent of his client. If he does so, he forfeits all right to compensation, even for services already rendered, and renders himself liable to an action for damages resulting from his wrongful withdrawal and consequent neglect of the case; he may not abandon a cause at a critical stage, leaving his client helpless in the emergency." 6 Corp. Jur. 673, 674, § 186.

Assuming, without deciding, that Howward's withdrawal from the conduct of plaintiff's case may have been an efficient factor in the proximate causation of the injury she complains of, his liability would depend upon the propriety vel non of his withdrawal without the personal knowledge and consent of the plaintiff, or of her alter ego, E. B. McCarson; and that question obviously depends upon the authority of Jones, real or ostensible, to dismiss or discharge Howard from further service and responsibility, under the circumstances shown.

The evidence shows that Jones was given a general authority to prosecute Mrs. McCarson's claim against the motor company, and to that end to agree upon the terms of settlement, and to select and employ an attorney, or attorneys, to serve as needed, and to supervise that service. Under that authority he selected and employed Howard, and introduced him to McCarson ashis (Jones') attorney, and Jones and Howard were directed to carry on the suit. Under these circumstances we think that Jones' general authority was broad enough to authorize him to discharge Howard and to employ another attorney in his place, and that the appearance of authority given to Jones justified Howard in yielding to his authority and dealing with him as though he had the authority he was exercising in the premises.

Our conclusion is that the general affirmative charge should have been given for Howard, as requested, and its refusal was error.

Count A of the amended complaint, upon which the verdict of the jury was grounded, does not charge that any one of the three defendants was an attorney at law, nor does it charge that their undertaking "to collect and deliver to her money for damages" was a joint undertaking, or that there was any sort of association or relation between them. Again, it does not show which, if any, of the three defendants was the attorney of record in the proceeding resulting in a judgment for $2,250 for plaintiff; nor does it show which one of the three defendants collected the judgment money from the clerk of the court, or under what authority — the allegation being simply that "the defendants, or some one or more of them," collected the money.

In an action for negligence —

"The duty of defendant must be shown by a statement of facts from which the duty follows as a matter of law. A mere general allegation of the existence of a duty is insufficient, and such general averment is a conclusion of law. Nor will the characterization of an act as negligent supply an omission * * * of duty." T. C. I. R. Co. v. Smith, 171 Ala. 251, 256,55 So. 170, 172, citing the text of 29 Cyc. 365.

If count A had charged merely that the defendants undertook to collect and deliver money to the plaintiff, and so negligently conducted themselves in the discharge of that duty that loss or damage was proximately caused to plaintiff, it would at least have stated a good cause of action. Jones v. Darden, 90 Ala. 372, 7 So. 923. But, when it goes further and shows that some one of the defendants — unnamed — had actually received the judgment money from the clerk of the court and failed to pay it over to plaintiff, further allegation was necessary in order to show a duty resting upon the other two defendants to safeguard the money in the hands of the first, or to see that he duly paid it over to plaintiff as she was entitled; for there are no allegations showing that any one of the defendants was responsible for, or owed any duty with respect to, the wrongful conduct of either of the others, particularly for the misappropriation of the money after it had properly passed into the custody and control of either of the others. Several grounds of the demurrer aptly pointed out this vital defect in the count, and the demurrer should have been sustained. Indeed, it fails to state a cause of action against any one of the defendants, because of the alternative form of allegation used.

Count 2 of the complaint would have supported a recovery against Brewer because of his negligent failure to inform his client, Mrs. McCarson, of the amount of the damages recovered for her, if the jury believed the testimony of plaintiff and her son as to Brewer's misstatements, or silence in the face of Jones' misstatements, as to the amount of the judgment, on the occasion when $500 was paid to her by Jones and Brewer.

It is to be inferred that the jury rejected that count as the basis for their verdict, because it charged conspiracy todefraud, and there was no proof of such a conspiracy, under the mistaken instruction that such proof was necessary to sustain a verdict. But such an allegation of conspiracy is not of the substance of the tort, and is in fact useful merely in aggravation of damages, or in showing a common liability of all for the acts of one.

"If a plaintiff fails in the proof of a conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the tort without such agreement. The charge of conspiracy where unsupported by evidence will be considered mere surplusage not necessary to be proved to support the action." 12 Corp. Jur. 584, 585, § 104.

For the error noted as to each of the defendants, the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.