Lamar Hardwood Co. v. Case , 143 Miss. 277 ( 1926 )

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff below and sued the appellant for damages to Howard S. Stallings, who was in jured while in the employ of the appellant, and who, after the injury, made a contract with the plaintiff, Case, an attorney, in the following words:

“Know all men by these presents: That I, Howard S. Stallings, have a certain claim, right or rights of action and demands against the Lamar Hardwood Company, of Horton, or Quitman, Clarke county, Mississippi, for injuries sustained by me while in the employ of said Lamar Hardwood Company when I was struck by an object on my leg and my leg bruised and broken on or about the 25th day of March, 1924, and whereas I have employed H. F. Case, lawyer of Quitman, in said county and state, to prosecute said claim against said company for me, and whereas said H. F. Case, lawyer, has agreed to render me faithful services in the prosecution and settlement of my said claim: Therefore I do hereby transfer and assign unto the said H. F. Case one-half or fifty per cent. (50%) of my said claim against said Lamar Hardwood Company, and I do hereby empower said H. F. Case to do any and everything necessary and proper to efficiently handle my said claim, giving him full control of same. However, it is distinctly understood and agreed that said claim is not to be settled or compromised without mutual consent of both parties hereto. And the said H. F. Case, lawyer, does hereby promise and agree, in consideration of said assignment, to faithfully prosecute said claim and do everything necessary and proper to efficiently handle same.

“In witness whereof, we, Howard S. Stallings and H. F. Case, do hereunto set our hands in duplicate this the 25th day of June, 1924.

“[Signed] Howard S. Starlings,

“H. F. Case.”

On the day following the execution of this contract, Case notified the appellant of his assignment to a one-half interest in the injury to Stallings, which letter was received by the appellant. Subsequently the insurance company or agency which insured appellant against lia bility in such cases sought to adjust the damages with Case, but, failing to do so, took up with Stallings personally the adjustment of the matter and settled with Stallings at and for the sum of two thousand dollars and took a release. Thereafter Case brought suit against the appellant for his one-half interest in the said damages under said, contract, making said contract and also the letter giving notice of his assignment to a one-half interest in the cause of action exhibits to his declaration.

The defendant pleaded the general issue and gave notice thereunder, under the statutory practice of this, state of giving notice under the general issue in lieu of affirmative matter usually set up by special pleas. In this general notice the defendant gave notice that it would prove the alleged contract of assignment upon which plaintiff based his cause of action to be utterly null and void in this, that the plaintiff was a duly licensed and practicing lawyer of this state, and as such was required to obey the law of the state, particularly with reference to the duty of an attorney; that among other duties prescribed by law for an attorney is “to encourage neither the commencement nor continuance of an action or proceeding from any motive of passion or personal interest,” and that it is against the public policy of this state for an attorney to solicit cases, directly or through an agent, or in any other manner to encourage litigation; that the defendant would offer evidence to prove that the plaintiff both personally and through an agent solicited Stallings to enter into the contract relied upon by the plaintiff and encouraged said Stallings to bring a lawsuit against defendant for his alleged injuries. The notice set out with more or less detail defendant’s contention that Case, through a physician, had solicited Stallings to employ Case as an attorney to prosecute said suit for damages, and offered certain inducements foe him to do so. It is unnecessary to set out in detail the allegations with reference thereto. This notice constituted one of the principal issues in the trial of the law suit and constitutes the principal ground for reversal here.

There was a sharp conflict in the testimony on both issues, that of liability for Stalling’s injuries, and on the question as to whether Case’s contract was procured by means of unlawful solicitation so as to defeat his right of recovery. We will not undertake to set out in full the substance of the testimony upon this issue. Suffice it to say that the testimony with reference thereto was such as to make the question proper for the determination of the jury.

The appellant requested the following instructions on the question as to whether the contract which Case had with Stallings was procured in violation of the public policy of the state evidenced by certain statutes:

“The court further instructs you for the defendant that, if you believe from the evidence that Stallings was induced to sign the contract in this cause by one Dr. Norris, claiming to represent the plaintiff soliciting same, and promising him that if he would execute the contract and employ the plaintiff that he would be taken care of pending the litigation and furnished with medical attention by the plaintiff, and but for the representations and promises Stallings would not have executed same, then said contract was void, and the plaintiff cannot recover thereon.

‘ ‘ The court instructs the jury that, if you believe from the evidence that the contract in this case was procured through solicitation and the said Stallings induced to sign it by reason of promises held out to him by Dr. Norris, then in law it is void and of no effect, even though the plaintiff himself did not authorize Dr. Norris to solicit the employment for him nor to offer any promises.”

These instructions -were refused by the court.

Appellant was given the following instructions upon that proposition of law:

‘ ‘ The court instructs the jury for the defendant that, if the contract in question was procured by the plaintiff’s solicitation, either personally or through an agent, then it is void, and recovery cannot be had thereon, and this is true whether any promises were held out to the said Stalling's or not.”

Section 190, Hemingway’s Code (section 216, Code of 1906), defining the duties'of attorneys, in part, reads as follows:

“ (6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;

“(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.”

Section 208, Hemingway’s Code (section 231, Code of 1906), reads as follows,:

“It shall be unlawful for an attorney at law, either before or after action brought, to promise, or give or offer to promise or give, a valuable consideration to any person as an inducement to placing, or in consideration or having' placed in his hands, or in the hands of any partnership of which he is a member, a demand of any kind, for the purpose of bringing suit or making* claim against another, or to employ a person to search for and procure clients to be brought to such attorney. ’ ’

We think that the instructions requested and refused were not accurate statements of law applicable to the case. An attorney who makes a contract with a client for a contingent fee is not to be deprived of his contract and his fee because some person, without his knowledge, connivance, or consent, makes representations with reference to the attorney or to advantages to the client that may accrue by reason of the employment of the attorney, or considerations beneficial to the client which the attorney will confer or give to the client, if the attorney had no knowledge of such statements or representations. The attorney is not required to answer for the sins of other persons, unless he has done something to cause or promote such delinquencies or sins.

We think the law as given to the defendant upon this proposition gives him the benefit of all that he was entitled to have upon the question. The jury fully understood that, if the plaintiff had solicited the contract either by himself or through an agent, he could not recover thereon. The conflict in the evidence made the jury the judges of what the truth was with reference thereto, and we are unable to say that the jury reached the wrong result.

The appellant next complains of the instructions given for the plaintiff, to-wit:

‘ ‘ The court instructs the jury that, if you believe from the preponderance of the evidence that the defendant failed to use reasonable care to furnish H. S. Stallings a reasonably safe place in which to work, and that he was injured as a proximate result of such failure, then it will be your duty to find for the plaintiff in this case.

“The court instructs the jury for the plaintiff that, if you believe from a preponderance of the evidence that the defendant failed to exercise a reasonable care to keep the piston rod machinery connected therewith in a reasonably safe condition, and that such failure, if any, on the part of the defendant was the proximate cause of the injuries to IT. S. Stallings, then it will be your duty to find for the plaintiff in this case.”

The criticism made of these instructions is in part as follows:

“It will be noted that the two instructions above quoted leave out of consideration altogether the invalidity of the contract in question. True it is that the plaintiff procured another instruction which told the jury that all of the instructions must be construed together, and that unless the plaintiff’s contract was legal he could not recover, but we submit that this instruction did not cure the error of the two instructions quoted above. The plaintiff procured fourteen instructions in this case. The defendant procured eight. The jury then was given a total of twenty-two different instructions. The trial lasted two days. An examination of the record in this case disclosed that it is in two volumes and contains three hundred and forty-five pages. Certainly a jury composed of the character of citizens which this court knows ordinarily serve upon juries, farmers, mechanics, and men from all walks of life, men who are unversed in court and court proceedings, should not be given instructions, as many in number as were given in this case and told that all twenty-two instructions must be read and considered - together, unless every instruction granted clearly announced the law on the subject attempted to be covered.”

As indicated in the brief from which we have quoted, the plaintiff procured instructions fourteen in number and had covered the contract feature of the case by appropriate instructions.

We have often announced in this court that the instructions must be taken together and be construed as a whole, one as modifying, explaining,or qualifying another,- and, if the instructions taken as'a whole correctly announce the law applicable to the case, we will not reverse the judgment because of an imperfect single instruction.

Under the laws of this state the jury is required to be composed of qualified electors of good intelligence, sound judgment, and fair character, and such persons are certainly supposed to be able to understand the English language and to understand and harmonize the instructions in the case. It is difficult to announce all of the law applicable to a case in a single instruction, and it is customary to give separate instructions on different features of a case. Each side presents instructions applicable to its theory and the whole number of instructions go to the jury with the approval of the circuit judge. So we think'there -was no reversible error at least in the plaintiff’s instructions.

It is next assigned for error that when the testimony closed the court fixed the time for .argument at one and one-half hours to the side; that when this announcement was made the plaintiff’s attorneys announced in open court they would use only thirty minutes in the opening argument and save one hour for the concluding’ argument, wh ereupon the defendant objected and insisted that at least one-half of the time allowed sliould be used in the opening argument of the plaintiff, which objection was overruled; that in the opening argument one of plaintiff’s attorneys used only thirty-seven minutes, leaving’ fifty-three minutes of the time allotted to be used by plaintiff’s attorney, who closed the argument for the plaintiff, and who used the entire fifty-three minutes.

The arguments are not in the record and we are unable to say from the record that the case was not clearly opened by plaintiff’s attorney in his opening argument. Much can be said in a period of thirty-seven minutes by a skillful advocate. Sometimes a loiag speech is not as lucid as a short one. As an appellate court we will not undertake to control the discretioaa of the lower courts in the matter of regulating the arguments, unless it is shown by the record that prejudice resulted to the complaining party by such rulings, aaad such is not shown iaa the record before us. We, of course, have no very clear eonceptioaa of what was said by either attorney as we are left to our imagination, having only the evidence in the case before us, with such personal knowledge as we may have of the attorneys in the case.

There is therefore aao merit iaa this assignment of error, aaad the judgment of the court below will be affirmed.

Affirmed.