Southern Kansas Railway Co. v. Pavey

Martin, C. J. 1. Client held by stipulation of attorney. I. The question most argued in this case respects the validity of the stipulation and the authority of Mr. Barker to enter into it. A litigant corporation must necessarily be represented in court by some officer, agent, attorney or solicitor, and it is conceded that Mr. Hurd, the general solicitor of the Company for Kansas, might have bound his client by a like stipulation. So far as it appeared from the record Mr. Barker was equal in authority with Mr. Hurd. He was an attorney of record, and perhaps the only one representing the Company present at the time the agreement for continuance was made. The Court had a right to presume that he had authority, either express or implied, to stipulate in open court for a continuance upon certain conditions; and his act remained unchallenged in court about two years and a half, and until after the decision of this Court in Mrs. Pavey’s case. It was then shown, however, that the general solicitor did not approve the stipulation, and that Mr. Waters, one of the attorneys for the plaintiff, was so notified; but, as the representatives of the Company knew that this stipulation was of record and was being acted upon by the continuance of the case in the meantime, it was incumbent upon them to signify to the Court that it was unauthorized and that the Company would not be bound by it. There is no claim that Mr. Barker was expressly directed by the Company or its general solicitor to make this stipulation; and if he had no implied authority as an attorney to do so, theffit should be disregarded, unless the Company ought to be held to it by reason of the acceptance of the benefit thereof and the long delay in moving for its vacation. The authorities are not [527] harmonious as to the extent of the implied authority of an attorney in the management of the litigation of his client. In Marbourg v. Smith, 11 Kan. 554, 562, where it was claimed that counsel for the defendant in a slander suit agreed, without the consent of his client, that a dismissal of that case should bar an action for the malicious prosecution thereof, it was held that if counsel made such an agreement they had exceeded their authority. In Herriman v. Shoman, 24 Kan. 387, it was decided that an attorney employed to collect a note, in the absence of special directions, is authorized to receive money only in payment thereof. In Jones v. Inness, 32 Kan. 177, it was held that an attorney at law has no power, without express authority, to compromise or settle his client’s, claim. See, also, Rounsaville v. Hazen, 33 Kan. 71, and Mayer v. Sparks, 3 Kan. App. 602. These cases, however, do not reach the point at issue here. In Howe v. Lawrence, 22 N. J. L. (2 Zab.) 99, 104, 106, it was held that an agreement wanting in mutuality, and by which, without the consent of his client, an attorney has waived his client’s substantial legal rights, will not be enforced, and this case has been cited as authority for the position that an attorney cannot waive any substantial legal right of his client; but the case does not warrant any such Assumption, the main ground of the decision being that the stipulation was' altogether one sided and entirely wanting in mutuality ; the Co urt saying,— “Either the agreement must have been entered into by the counsel of the defendant under some misapprehension of its character, in which event it is not his agreement, or it must have been founded upon some corrupt consideration, in which event it is utterly void.” It was an agreement (to use the words of Chief Justice Marshall in Holker and others v. [528] Parker, 7 Cranch, 436, 452) “ so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case.” An agreement of such a character should of course be set aside by the court in the interest of justice. The agreement made by Mr. Barker does not belong in this class. It does not impress us as unreasonable or unusual. A case had been tried in the District Court of Franklin County involving the negligence of the Railway Company and the contributory negligence of Mrs. Pavey in relation to the casualty whereby she received the personal injuries, — the subject of that action and of this. John A. Pavey was present with his wife at the time she was hurt. Plis contributory negligence perhaps would not defeat her right of action, while it might have that effect as to his own ; but undoubtedly, on the trial, the attorney representing the Railway Company might have waived the defense of contributory negligence, even though raised by the pleadings. The stipulation was mutually advantageous. It saved each party the trouble and expense of taking the testimony as to the casualty without the risk of its loss by the death, removal or absence of the witnesses. A final judgment in favor of the defendant in Mrs. Pavey's case would have ended this one ; while an affirmance of the judgment already obtained was to be conclusive in this on the question of negligence, leaving for trial only the amount of the recovery. We regard the stipulation in the light of a waiver of proof on the question of negligence upon a certain condition not unreasonable in itself. Such waivers by attorneys are common either before or during the trial without the express authority of the client, and they should usually be upheld unless in [529] case of fraud, imposition, collusion or mistake, when the court has ample authority to set them aside ; but there is no suggestion of any of these in this case.This conclusion in our opinion finds support in the following authorities: Holliday v. Stuart, 151 U. S. 229, 235; Cox v. Railroad Co., 63 N. Y. 414, 418; Saleski v. Boyd, 32 Ark. 74, 83; Rogers v. Greenwood, 14 Minn. 333; Eidam v. Finnegan, 48 id. 53 (16 L. R. A. 507); Foster v. Wiley, 27 Mich. 244, 248, 249; Cheever v. Mirrick et al., 2 N. H. 376, 379; Moulton v. Bowker, 115 Mass. 36, 40; 2 Wharton, Ev. § 1184. 2. Syllabus and opinion not admissible. II. The Court erred in admitting in evidence the syllabus and the opinion of this Court in the Rilla C. Pavey case. Under the stipulation it was competent to prove that the judgment in that case had been affirmed, and this might have been done by the introduction in evidence of a certified copy of the judgment of affirmance ; but neither the syllabus nor the opinion forms part of the judgment in a civil case. In The State v. Wait, 44 Kan. 310, and in A. T. &. S. F. Rld. Co. v. Dwelle, 44 id. 394, 408, it was held, error to allow counsel to read to the jury the opinion of this Court in another case ; and it could not be less prejudicial to introduce the same in evidence, for this would authorize any proper comment J r upon it in argument. We have had some doubt whether the error was sufficiently material and prejudicial to require a reversal of the judgment, but have resolved it in the affirmative. In order to establish liability in this case it was only necessary to prove that the judgment in Mrs. Pavey’s case had been affirmed; but to disclose the extent-of Mrs. Pavey’s disability and the plaintiff’s loss resulting therefrom evidence was necessary, and even [530] the record in another case between other parties would be incompetent. Some of the comments of the Court, however appropriate in that case, were not applicable in this ; and as the verdict was, to say the least, very liberal for the loss of services, it may have been influenced to some extent by this incompetent evidence. Besides, counsel for defendant admitted in open court that the judgment in favor of Mrs. Pavey had been affirmed; and this was all the legitimate matter furnishing an excuse for the reading of the syllabus and the opinion. Perhaps the admission may be good upon a subsequent trial (C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394); but at all events it was sufficient to obviate the necessity for the introduction of any further evidence in relation to Mrs. Pavey’s case. 3. Wife's petitionnot competent, when. III. The Court was right in excluding the amended petition in Mrs. Pavey’s case, even upon the assumption that she may have sought damages therein which were also claimed by the plaintiff in his petition. We must presume that she recovered in that action only the damages to which she was entitled, whatever her claim may have been; but if her judgment had been for more, this would be no sufficient reason for depriving the plaintiff of damages which he had sustained. There was no relation between the two cases as to the amount of damages which the respective plaintiffs were entitled to recover. [531] 4. Husband may recover for loss of wife’s services. [530] IV. The instructions directed to the point that, under the petition and the evidence, the plaintiff was not entitled to recover for the loss of his wife’s services, were properly refused. There was no intimation either by pleading or proof that Mrs Pavey pursued [531] any vocation on her own account after her marriage, and it sufficiently appeared from both that she was engaged only in house-o o j hold work for her husband and family. The cases of City of Wyandotte v. Agan, 37 Kan. 528, 530, and A. T. & S. F. Rld. Co. v. Dickey, 1 Kan. App. 770, are not inconsistent with a recovery in this case. The Court carefully and correctly instructed the jury touching the kinds of damages recoverable by the plaintiff, and the findings show that the jury fully comprehended the instructions and were governed thereby. For the error in admitting in evidence the syllabus and the opinion in Mrs. Pavey’s case the judgment must be reversed and the case remanded for a new trial. All the Justices concurring.