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Warner v. Basten

DECEMBER 31, 1969.




Appeal from the Circuit Court of Lake County; the Hon. LaVERNE DIXON, Judge, presiding. Judgment affirmed.


Rehearing denied February 13, 1970.

This action is brought upon a petition to enforce an attorney's lien as provided under the Illinois Attorney's Lien Act (Ill Rev Stats 1967, c 13, § 14). The trial court, after hearing the testimony upon the petition and answer, found for the petitioner and ordered a lien and charge against all proceeds of the claim in question in the amount of 25% of any such proceeds, giving such lien priority over any other attorney.

The claim in question arises out of a truck-bicycle collision which occurred on September 22, 1968. On that date, William J. Basten operated a truck which struck a bicycle being operated, on the shoulder of a road, by Anthony Warner. The circumstances surrounding the accident, as set out in the pleadings and the record strongly indicate liability on the part of Basten.

Anthony Warner, seven years of age, received serious internal injuries some of which required the removal of his right kidney and the surgical repair of his liver. The minor's father, Terry Warner, respondent, was riding a bicycle nearby and received a slight injury to his hand when struck by the truck. The respondent, a member of the U.S. Naval service, contacted the legal department at Great Lakes Naval Center and was referred to the chairman of the Legal Referral Service of the Lake County Bar Association. The Legal Referral Service, in turn, referred the respondent to Charles May, attorney at law and petitioner herein.

On October 7, 1968, the respondent met with the petitioner in the latter's office. During the meeting, in the presence of the respondent, the petitioner dictated a "memorandum to file" concerning the accident and prospective investigative and preparatory steps to be taken. Included in the memorandum, which was allowed into evidence, was a statement to the effect that the petitioner would charge 33 1/3% of the sum recovered in the event suit were filed or 25% of the sum recovered in the event of settlement.

Upon cross-examination, with reference to the first conversation, the following testimony took place:

Q. "In this case. What was that conversation?"

A. "I told Mr. Warner that as a prospective client, I thought he should hear from me that our firm did on occasion represent insurance clients, but that if he saw fit to retain us, I could give him my full and complete assurance that it didn't matter who the case turned out to be against, I would devote my best efforts to he and to his son."

Q. "Did you tell him at that time that you were representing Maryland Casualty Company?"

A. "No specific reference was made that I had a case for Maryland Casualty. At that specific time we didn't have any idea whether Mr. Basten was insured with Maryland Casualty."

Q. "Did you tell him you would not be able to prosecute his claim, his son's claim if you found that you represented a company that you were involved with defense work in, or had represented before?"

A. "No, I specifically told him the opposite, that if I undertook to step into a case, it didn't matter whether or not in the past I had defended one of those insurance company clients, I would represent his son."

It appears that on the same day, after the meeting, the petitioner retained an investigator and undertook investigation of the case by visiting the scene with the respondent and the investigator; instructed the investigator as to the necessary photographs to be taken; went to respondent's home and photographed the bicycle involved; unsuccessfully attempted to contact Basten at his home; and instructed the investigator to canvass the scene of the accident for additional occurrence witnesses, as only one occurrence witness was known at the time. Subsequently, the petitioner, by telephone, informed the respondent that the photographs ordered were completed; that in addition to obtaining a statement from the known witness, the investigator uncovered three additional witnesses; that because of a conflict in the description of the truck, colored photographs of the same were obtained after several unsuccessful trips to the place of employment and the home of Basten. It was at this time that the petitioner again visited the home of the respondent and informed him that Basten refused to give him a statement.

Thereafter, on October 25, 1968, the respondent visited the petitioner's office and further discussed the status of the case. Petitioner testified that, during this discussion, he recommended, in light of Basten's refusal to give a statement, that suit be filed immediately, the investigation having disclosed that there may have been a dramshop action based upon the possibility that Basten was intoxicated at the time of the accident and, further, that Maryland Casualty Company (Maryland), who insured Basten, refused to disclose their liability limits. Also at this meeting, the petitioner testified he informed the respondent that, instead of charging the usual 33 1/3% in the event suit is filed, his contingent charge would be 25%. This, he said, was based upon a new policy, placed in effect the day before, by the probate division of the court which limited attorneys' fees to 25% where representation was based upon a minor's interest.

On October 31, 1968, the petitioner and respondent, along with a court reporter, appeared at the traffic hearing involving Basten. After the hearing, the petitioner left town to attend a seminar; however, prior to leaving he had dictated a complaint for filing. Up to this point of time, there had been no expression of dissatisfaction made by the respondent to the petitioner concerning the handling of the case.

Upon his return, the petitioner received a letter dated November 1, 1968, signed by Mr. and Mrs. Warner, discharging the petitioner. The letter was as follows:

"Mr. May,

"My wife and I have discussed the progress of the case for Anthony quite thoroughly (sic) during the past few days. We have both agreed that we are not satisfied ...

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