Appeal from the Circuit Court of Cook County; the Hon. ALFRED
J. CILELLA, Trial Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 13, 1962.
The instant suit was an action under the Federal Employers' Liability Act to recover damages for the death of Paul A. Phelps. A judgment was rendered against Elgin, Joliet & Eastern Railway for $100,000 and part of the proceeds were deposited with the clerk of the court. Plaintiff, the widow, filed a petition in these proceedings to adjudicate the attorney's lien of respondents and after a hearing, judgment was entered against the claim of respondents for attorney's fees and respondents bring this appeal.
The facts, as they appear from the pleadings, are undisputed. Paul A. Phelps was killed on December 13, 1958, while employed by the defendant railroad company in Gary, Indiana. On December 15, 1958, Anna L. Phelps, his widow, executed a written agreement employing respondent William O. Arnold *fn1 "to prosecute or settle all claims for damage against E.J. & E. Railroad . . ." and agreed to pay one-third "of whatever may be recovered from said claim either by suit, settlement or in any other manner." On February 6, 1959, Mrs. Phelps was named special administratrix of the estate of Paul Phelps and in that capacity she employed William H. DeParcq, a different counsel, to file suit on behalf of herself and the five minor children of decedent, and a settlement was thereafter negotiated in the sum of $100.000. Later, the widow, as plaintiff administratrix, petitioned the court to adjudicate respondents' claim alleging that respondents had served the railway company with a notice of attorney's lien and she denied she was indebted to them in any sum whatever.
The respondents' answer asserted their claim for fees and attached a copy of the agreement referred to above, alleging they duly served the railway company with a notice of attorney's lien (a copy of which was attached) on December 18, 1958. It was further alleged that upon being retained by Mrs. Phelps, respondents immediately investigated the matter and were at all times ready and willing to perform their agreement, but were prevented from so doing by the actions of the plaintiff who disregarded her agreement and employed other attorneys. The answer prayed that the matter be set down for a hearing and claimed judgment for $33,333.33 in accordance with the agreement.
Subsequently, plaintiff filed a motion to strike and for judgment, asserting that the contract was void upon its face inasmuch as it was signed by her in her individual capacity without authority or as a representative of the estate and was void under the Federal Employers' Liability Act. After a hearing on the pleadings, the court sustained the motion to strike and entered judgment against respondents, stating that the obligation of Mrs. Phelps was an individual one and not binding on the proceeds of a suit brought by her in her capacity as special administratrix.
There is no dispute between the litigants over whether the attorney's lien was properly filed, Haj v. American Bottling Co., 261 Ill. 362, 103 N.E. 1000, or that the Illinois law is to be applied. Peresipka v. Elgin, J. & E. Ry. Co., 231 F.2d 268. Nor is it disputed that the Federal Employers' Liability Act gives the right of action to personal representatives only. American R.R. Co. of Porto Rico v. Birch, 224 U.S. 547; Pecos & Northern Ry. Co. v. Rosenbloom, 240 U.S. 439. The parties do disagree over whether the appointment of Mrs. Phelps as special administratrix on February 6, 1959, relates back to the date of her husband's death thereby validating the employment of respondents.
Illinois, along with a majority of jurisdictions in the United States, recognizes the doctrine of relation-back. In Globe Acc. Ins. Co., v. Gerisch, 163 Ill. 625, 45 N.E. 563, the Supreme Court held that:
"Under [the doctrine of relation] the grant of letters of administration related back to the date of the intestate's death, and validated all acts which came within the scope of an administrator's authority, and which were, in their nature, beneficial to the estate." 163 Ill at 631.
In Faubel v. Michigan Boulevard Bldg. Co., 278 Ill. App. 159, 167, this court stated that the grant of letters relates back and "validates all acts of the executrix which are otherwise lawful and proper." The relation-back doctrine has also been applied in Mason v. Papadopulos, 12 Ill. App.2d 140, 138 N.E.2d 821, and In re Swartz, 218 Ill. App. 449.
Corpus Juris Secundum explains this to be the majority rule in the United States.
"When letters testamentary or of administration are issued they relate back to the time of decedent's death and validate the acts of the representative done in the interim which are otherwise lawful and proper or necessary to the proper administration of the estate, the doctrine being controlled to some extent by the equities in the case." 33 CJS, Executors and Administrators, 151(b), p 1113, citing Faubel v. Michigan Blvd. Bldg. Co., 278 Ill. App. 159.
There can be no doubt that having an attorney investigate the facts leading to decedent's death in preparation to filing claim is in the interest of all the beneficiaries. It is entirely lawful and proper for the person who will be administratrix and who is the natural guardian of her children to retain an attorney for this purpose. Thus, the doctrine of relation-back should be applied here to validate Mrs. Phelps' employment of respondents prior to the date she was named administratrix.
Petitioner relies strongly on the case of Tuohy v. Chicago & J.E. Ry. Co., 200 Ill. App. 446. It is true that the Appellate Court for the second district, in an abstract opinion, stated that, when the contract for contingent attorney's fees was made by the individual and later not ratified by him as administrator, the claim was against the individual and not the estate. However, it does not appear that the doctrine of relation-back is mentioned in the opinion and we can only assume the point was not raised. Also, the facts show that the mailing of the lien notice was an issue. The court went on to say that "[a] notice to establish a statutory lien, where the manner of service is not pointed out by the Statute, requires a personal service of such notice," citing Haj v. American Bottling Co., 261 Ill. 362, 103 NE 1000, and the opinion concludes with "[i]t is clear, under the decision in the Haj case, supra, that a personal service on appellee, of the notice, was necessary, as a condition precedent to the establishment of a lien, if the petitioner had ...