Ensor v. Bolgiano

Miller, J., delivered the opinion of the Court. Thomas F. Allen was injured on the Baltimore " and Yorktown Turnpike Road, and Mr. Ensor became his counsel to sue the company for damages. The agreement between them was that Mr. Ensor should receive for his services one-half of what might be recovered. The suit was brought in August, 1883, the damages claimed in the narr. being $10,000. Afterwards in January, 1884, Allen compromised with the company upon receiving $500, and executed to them a release. This release was filed in July, 1884, and Mr. Ensor as counsel for the plaintiff thereupon entered the case “off.” After this, in October, 1884, Mr. Ensor brought the present suit against Mr. Bolgiano, a stockholder of the company who had been instrumental in bringing about this compromise. The original declaration contained two counts in slander, charging in substance that Bolgiano said to Allen these words in reference to the damage suit and the compromise of it: “From what I have heard of Ensor he will not attend to your case and will neglect it; that if he does attend to it he will charge you so outrageously for everything he does, that you will get but a very small sum out of your claim for damages, and you had better settle with the company; there is no use in your paying Ensor anything, and I do not want him to get one cent.” After-wards the declaration was amended by adding a third and fourth count which charge in substance that the defendant well Jcnoioing the contract which the plaintiff had made with Allen for compensation in the damage suit, and wrongfully and maliciously intending to injure him and deprive him of his fee as attorney in that action by pean» of certain false and fraudulent statements, arguments and — 197 — persuasions, made Allen believe the plaintiff would not •attend to his case, and if he did, would so overcharge him that he would have but a small sum left, and thereby induced Allen to bréale his contract luith the plaintiff, and to ■settle the suit without his knowledge or consent, for a small and grossly inadequate sum of which the plaintiff was to receive, and did receive, no portion whatever. The particular statements made by the defendant to Allen as •set out in the third count are these: “If you win your case the company will appeal and by the time your lawyers, {meaning the plaintiff,) are through with it, you will have hut a small sum left; I don’t like to see a lawyer make ■anything out of a poor man ; a special friend of your lawyers, {meaning the plaintiff,) has told him that you are an onery drunken fellow; and when Allen asked in case he ■should settle, what ahont his lawyer, the defendant answered, ‘that is all right’ ” These counts also charge that the defendant committed these grievances, well knowing that Allen had no property out of which the plaintiff •could recover compensation for this breach of contract or for his services Besides non cul. the defendant interposed three special pleas, denying first, that he had any knowledge of the contract between Ensor and Allen at the time of the alleged •conversations with Allen set out in the third count; second, denying that he wrongfully persuaded or induced Allen to break this contract, and third, averring that he did not, wrongfully or maliciously intend to injure the plaintiff ■and deprive him of his fee, by means of any false and fraudulent statements and persuasions, induce Allen to break his contract as alleged in the fourth count. The case was tried upon issues joined on these pleas. At the trial the testimony was all on the part of the fflaintiff, no witness being examined for the defendant. Upon this the Court instructed the jury that the plaintiff lias offered no evidence of the utterance by the defend — 198 — •ant of the actionable words alleged in the declaration, and having produced no evidence to sustain the material allegations of the declaration, their verdict must he for the defendant. This instruction is equivalent to sustaining a general demurrer to the evidence, and raises the question,, whether there is any testimony legally sufficient to sustain j.ny count either of the original or amended declaration. It has not been pretended that there was any evideuce whatever to sustain the counts in slander, and the sole question is, was there any evidence legally sufficient to-sustain the third and fourth counts. The gist of these counts is that -Bolgiano, with knowledge of the contract, between Ensor and Allen for a contingent fee in “the damage suit, and with malice towards Ensor, induced Allen to compromise that case, and break his contract with Ensor. How what is the proof to sustain this charge?' The first witness was Allen. By putting him on the stand the plaintiff vouched his credibility, but from the start his counsel cross-examined him as if he were unworthy of credit. He testified that when he made the compromise he did not know that the suit in the damage case had been entered; that he had never heard a word from Ensor on the subject, and to this he adhered to-throughout his examination. He says that Bolgiano sent him word that he wanted to see him about compromising the case. That when he saw him “He asked me what I wanted, and I told him $1000; he said he did not think he could get that, but thought he could get $500, and would try to get my doctor’s bill paid,-and so T told him ‘all right;’ he talked a little longer and said if you gain the suit, no doubt the company will-take an appeal, and by the time your lawyers, (he didn’t mention any name at all) got through I might have but a very small sum coming to me, no doubt; he then mentioned that he had heard a particular friend of Mr. Ensor had told Ensor I was a worthless onery kind of drunken man, I — 199 — •asked him who it was, and he would not say, so I pitched on Charles Hammond out there, the only gentleman I knew who is a particular friend of Mr. Ensor; so then I came to. the conclusion thjit I would settle the ■case not having heard from Mr. Ensor.” The witness reiterated again and again in his long examination the statement that the fact that he had not heard from Mr. Ensor, was one of the reasons which induced him to make the compromise. With the same pertinacity he also said that when Mr. Bolgiano spoke of his lawyers he did not mention Mr. Ensor’s name, and that he neither told him, nor did Mr. Bolgiano know anything about the contract Ensor had made with him. To these statements he steadily adhered, and by no ingenuity •of questioning could he be made to say the contrary. It also appears that prior to this suit, Allen had made an affidavit before Cole, a magistrate, through whose agency Ensor had been employed in the damage case, as to what Bolgiano had said to him when the compromise was made. In reference to this affidavit, Cole says it was not made out by him from what Allen told him, but was sent to him written out by Mr. Ensor, and that Allen, •after requiring some corrections to be made in it, swore to it after it was read over to him. It is needless to say, that this affidavit was not of itself evidence. Allen, however, was examined in regard to it, and testified that he could neither read nor write, and that he told Cole when it was read to him that there were some things wrong in it. One statement it contained was, that “ Bolgiano said he did not want Ensor to get one cent;” but as to this Allen,' testifies that “Mr. Cole got that wrong. I told him that Mr. Bolgiano said he did not like to see a lawyer make anything off of a poor man.” And the witness repeated several times that this was what Mr. Bolgiano said, and that he did not say what is contained in the affidavit on that subject. — 200 — The plaintiff then called Mr. Bolgiano as a witness, and proved by Mm that in bringing about the compromise he acted solely at the request of Allen and in his interest, and endeavored to get thg best terms he could for him, and did so; that when he met Allen he took the precaution to-ask him if there were any third parties to consult, and he-said “ No.” “ I then asked him how much he wanted, and he said $1000, and I said will you pay your doctor’s bill? and he said ‘No.’” That after trying in vain to get $1000 for him, Allen said he would take $500, and I added, provided the company paid the doctor’s bills.. The case was accordingly compromised on that basis. Prom this testimony, all of which, as we have said, was offered by the plaintiff himself, we think it plain that no rational mind could fairly deduce the inference necessary to support either the third or fourth count of .the declaration. The whole effort on the part of the plaintiff seems to have been to induce the jury to believe that Allen, his own witness, was not entitled to credit in what he testified to on the stand, and to allow them to take as true the statements contained in an affidavit made out of Court, the truth of which the witness denied, simply because ac the time he testified he was in the employment of the Turnpike Company; and to discredit Bolgiano, also his own witness, in what he testified to, because at the time the compromise was made he was a stockholder of the company. The case differs radically from one where the witnesses on one side are contradicted by those on the other. In our opinion a verdict in favor of the plaintiff under these counts, could in the face of this testimony, he based only upon vague suspicion or irrational conjecture. And in such case, it is according to all the authorities, the duty of the Court to instruct the jury that there is no evidence legally sufficient to sustain the action. We are fully satisfied that the Court below was fully right in thus ruling in this case, and that it would have been error to have ruled otherwise. — 201 — (Decided 22d April, 1887.) Nor do we think there was' any error prejudicial to the appellant in the ruling contained in the first exception. The fact that neither Hammond nor any one else had actually told Mr. Ensor that Allen “ was a worthless, onery kind of a drunken mau,” could hardly tend even to prove that Mr. Bolgiano had not heard that a particular friend of Mr. Ensor had so told him. But even if this testimony were in the case, it would not alter our opinion as to the legal insufficiency of the evidence to support the action. It follows from these views that the judgment must he affirmed, and this renders it unnecessary to express any opinion upon the question whether the law, as laid down in Lumley vs. Gye, 2 Ellis & Black., 216, is applicable to the relation of attorney and client in this State, and to the contracts made between them in reference to compensation for professional services rendered, or to be rendered by the attorney in the prosecution of a suit like the one which was here compromised. If we had come to the conclusion there was error in the rulings complained of, it would' become necessary for us to consider that question, and we refer to it now simply for the purpose of excluding the inference that we decide it one way or the other. Judgment affirmed.