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Morris v. Pennsylvania R. Co.

APRIL 24, 1956.




Appeal from the City Court of Calumet City, the Hon. JOHN E. PAVLIK, Judge, presiding. Judgment reversed and cause remanded for new trial.


Rehearing denied May 15, 1956.

This is an action by Thomas M. Morris, petitioner, to enforce an attorney's lien for fees by virtue of an alleged contract with one John W. Shultz, which petitioner claimed entitled him to one-third of the amount of a $40,000 settlement that the respondent had made with Shultz after petitioner had been discharged as his attorney. The respondent defended on the ground that the contract was obtained by solicitation. After a bench trial the court entered an order sustaining the petition and entering judgment against respondent for the sum of $13,333.33. Appeal was taken from this judgment order.

If petitioner's contract of employment was obtained through solicitation, it is void and unenforceable. The opinion in Atchison, T. & S.F. Ry. Co. v. Andrews, 338 Ill. App. 552, 88 N.E.2d 364, where leave to appeal was later denied by the Supreme Court, is extremely illuminating on this subject. Andrews, whose name was stricken from the roll of attorneys after the case had been decided, was there enjoined, together with two other defendants, from soliciting the claims of injured employees of two railroad companies through ambulance chasers. The court there said at p. 567:

"Barratry, champerty and maintenance were offenses at common law. Each is malum in se. (Gilbert v. Holmes, 64 Ill. 548, 555; Geer v. Frank, 179 Ill. 570, 574.) The public policy of Illinois against fomenting and maintaining litigation is declared by the statutes and decisions of our courts. Paragraphs 65 and 66, chap. 38, Ill. Rev. Stat. 1947 [Jones Ill. Stats. Ann. 37.040, 37.041], makes barratry and maintenance unlawful. . . . The same public policy is declared in the statutes of California, Arizona and New Mexico. The evidence in support of the charges of champerty and maintenance shows a brazen contempt for the law, legal ethics, and the rights of plaintiffs."

See also Puls v. Chicago & N.W. Ry. Co., 233 Ill. App. 625; Brink's Inc. v. Gravesen, 309 Ill. App. 571, 33 N.E.2d 497; People v. Berezniak, 292 Ill. 305, 127 N.E. 36; Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263, 98 S.W. 178, 9 L.R.A. (N.S.) 282. In order to decide this issue it is necessary for us to review the evidence.

Petitioner was his only witness. He testified that he has practiced law in the State of Illinois since 1926. In November 1953 petitioner while on his way to Connecticut stopped at Fort Wayne, Indiana. There he met one James F. Forbes, a friend of his for thirty years, whose residence was in Lawrence, Michigan. Forbes did not appear in the case as a witness, and it is not shown what his vocation was. However, from the record he appears to have been the contact man for petitioner in at least two personal injury cases; that of Leland L. Hart and John W. Shultz. It does not appear from the record how the meeting between Forbes and petitioner was arranged. In any event, Forbes met with petitioner and they went to the Keenan Hotel where Forbes introduced him to Hart. Petitioner had had some correspondence with Hart pertaining to a claim which Hart had settled with respondent. Hart, Forbes and petitioner discussed Hart's case. In the course of the discussion it was mentioned that John W. Shultz, an employee of respondent who lived in Fort Wayne, had been injured. Forbes and Hart asked him to go visit Shultz that evening. Hart called Shultz on the phone and made the arrangements for the visit. The three of them went to Shultz's home and discussed his claim against the respondent. Petitioner told Shultz that he ought to have a lawyer. He said, "Look at what they did to Lee Hart, but I don't have to be the lawyer. Of course, I would like to represent you but you don't have to hire me." There was no discussion on what basis he would handle the claim. He was not retained at that time. Sometime later he was again in Fort Wayne and again met Hart and Forbes. They went to Shultz's house. Shultz came out and petitioner and Forbes talked with him about his case again. Shultz came to Chicago on February 24, 1954. Forbes met Shultz at the station and they came to petitioner's office. The three of them discussed the case. Shultz signed a contract retaining petitioner to prosecute Shultz's claim against respondent for one-third of any amount collected from the claim. Shultz told petitioner he had talked to Jerry Gerhart, a former client of his, about his case. Gerhart told him that he had checked petitioner's reputation through Notre Dame University and a banker on La Salle Street and it was good.

Petitioner further testified that suit was filed, and a letter enclosing a copy of attorney's lien was sent to respondent notifying it that he had a contract with Shultz for his claim against respondent. He testified that he had no agreement to pay Forbes for obtaining the Shultz case, that he did not pay any of Forbes' expenses, and that Forbes did not investigate the case. Later Shultz came to Chicago and was examined by Dr. Zeitlin. Petitioner did not know whether Forbes went with Shultz to Zeitlin's office. He may have. Two pretrial conferences were held. The petitioner submitted a figure of $90,000 to respondent to settle Shultz's claim. On June 28 a letter was written to Shultz informing him that the case was set for trial on July 13. A check for $200 payable to Shultz was enclosed with the letter. Shortly thereafter he received a letter from Shultz discharging him as his attorney and enclosing a check for $900 payable to his order for expenses that he had advanced. The $900 was advanced to Shultz so that he would have money to support himself until the case was tried. No advancements were made previous to February 24. Petitioner did not know whether Forbes had advanced any money, but doubted it. Morris saw Shultz again in October of 1954 at Rochester, Indiana. Forbes was with him. Shultz answered some typewritten questions that he had prepared, which we discuss later.

The witnesses for the respondent were John W. Shultz and Leland L. Hart. John W. Shultz testified that on March 11, 1953, he was employed by the respondent. On this day, while at work, he was injured and as a result four fingers on his left hand were amputated. About two or three weeks after the accident, while he was in the hospital, Leland Hart, an employee of respondent, visited him. He had known Hart for several years. Hart said he would like to have him talk with Morris' representative, Jim Forbes. Hart said Morris represented him in trying to set aside a poor settlement which he had made, without a lawyer, with respondent for injuries he had incurred. Shultz told Hart that he was going to give the railroad a chance to settle and he would rather not talk to anybody until then. Some weeks later when he was at home Hart called again and brought Forbes to see him. On two different occasions Forbes and Hart discussed the case with him. On one of these visits Forbes advised him to get himself legal counsel and that he, Forbes, was there to represent a firm. On another occasion Forbes told him that if he decided on Tom Morris whom he, Forbes, represented, Shultz could recover $125,000 clear.

Shultz further testified that in June of 1953 Hart called him and said that Morris was in town and that he, Forbes and Morris would like to see him. They came to his home. Morris told him that he had a serious case; that if he dealt with respondent they would do the same thing to him that they did to Hart. He told him if he had a lawyer this wouldn't happen. He was told his case was worth a lot of money. Forbes told him $125,000; Morris $95,000 to $96,000. Morris told him he should obtain a good lawyer but that he didn't have to hire him. He told Morris that if he hired a lawyer he would give Morris the first chance to settle the case. Shortly after this meeting Forbes and Hart again visited him and talked about the case. About 60 days later Morris, Forbes and Hart again came to his home. Morris again told him he should get a good lawyer to handle his action but that he did not have to hire him. Shultz said he was waiting to see if respondent would give him a reasonable settlement. Forbes and Hart called on him several times after that about the case. Forbes wrote him about the case on a number of occasions and asked him to come to Chicago and sign up. He finally told Forbes he would come to Chicago and see Morris because he was not satisfied with the figure that respondent had submitted for a settlement. Before doing it, however, he talked with a man by the name of Jerry Gerhart who was an employee of respondent and had been injured. Morris had represented him until another lawyer had taken over the case. Gerhart told him that Morris was a good lawyer.

Shultz further testified that on February 24 he went to Chicago and met Forbes. He went with him to Morris' office where he, Morris and Forbes discussed his case. He signed a contract employing Morris as his attorney. Morris called him about the middle of June. He couldn't make out what he was trying to say. He asked Morris how he was getting along with the case and never got an answer. After this phone conversation he got disgusted with Morris. He was also upset because he was not being supplied with enough money on which to live. Thereafter he went to see respondent's claim agent about settling his case. He was informed that before he could settle it he had to discharge his lawyer. He went to see a Fort Wayne attorney who was also attorney for respondent. He told this lawyer's secretary what he wanted in a letter and she wrote it for him. The letter expressed his dissatisfaction with Morris' handling of the case and discharged him. He enclosed a check for $900 repaying the advancements made to him by petitioner. This was withdrawn from his own funds on deposit at the Anthony Wayne Bank in Fort Wayne. After sending the letter to Morris he settled his claim with respondent for $40,000. Respondent agreed to protect him from any claim Morris might make for attorney's fees. He next saw Morris in October of 1954 in Indiana. There he filled out a prepared list of questions which were submitted to him. One of the questions was:

"Was it solely as a result of your conversation with Gerhart and Lee Hart, together with your own impression of me, that made your mind up to seek my services?

"The Witness: I did."

Leland L. Hart, testifying for the respondent, said that he was now employed as a local freight conductor for respondent. He had known Shultz for twelve years. He first met Forbes through a Pete Eiker. His brother, Jake Eiker, was a brakeman on the Nickel Plate Railroad and was a former client of Morris. Pete Eiker brought Forbes to Hart's house and talked to him in regard to injuries he had received. He had settled with the railroad but did not figure he received just compensation. Forbes told him he thought he could get his case reopened and produced a contract which he signed for the Morris firm to represent him. He called Forbes about the Shultz case. Forbes came down and they went to see Shultz. Hart corroborated Shultz's testimony as to the various conversations that took place between Forbes, Shultz and himself. He had had correspondence with Morris about his case, but did not meet him until introduced to him by Forbes at the Keenan Hotel in Fort Wayne in June 1953. Morris told him he wanted to meet Shultz. He called and made the appointment for Morris, Forbes and himself. He corroborated Shultz's testimony as to the subsequent meetings at Shultz's home. Some sixty days later he took Forbes and Morris to Shultz's home again. After this meeting with Shultz, Morris and Forbes came to his home. Morris and Forbes promised him that if Morris got the Shultz case he would be ...

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