Parr v. Chicago, Burlington & Quincy Railroad

ALLEN, J. Plaintiff . sued the defendant railroad company for damages in the sum of $2965, alleged to have resulted from the setting out of a fire on his premises by one of defendant’s locomotives. Some months prior to the trial defendant served plaintiff’s counsel of record with a written offer to allow plaintiff to take judgment for the sum of $750. To this instrument was signed the name of the defendant railroad company by its attorneys of record in the cause. The offer was not accepted. The trial • resulted in a verdict and judgment for plaintiff in the sum of $100. Defendant then moved to have the costs accrued after the making of the offer taxed against the plaintiff. The trial court overruled this motion, and the defendant appealed. It appears that the trial court overruled the motion upon the theory that defendant failed to show authority on the part of its counsel to sign the written offer. There was some attempt to show that the making of the offer was a matter within the authority conferred by defendant upon its counsel, hut testimony proffered along this line was for the most part excluded for reasons which need not he here considered. [421] The statute under which the offer was made, to-wit; Section 1965, Revised Statutes 1909, provides as follows: “The defendant in any action may, at any time before trial or judgment, serve upon the plaintiff or his attorney of record an offer in writing, to allow judgment to be taken against him for' the sum or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within ten days, he may file the offer and an affidavit of notice of acceptance, and judgment shall be entered accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence or commented on before a jury;" and if the plaintiff fail to obtain a more favorable judgment he shall pay the defendant’s cost from the time of the offer.” The argument advanced in support of the court’s ruling below is that the offer was one of compromise, and that an attorney, by virtue of his employment as such, has no authority to compromise his client’s case; that the statute is to be strictly construed, and since the offer must be made by “the defendant” it must appear to have been made either directly by the defendant or by some one clothed with, authority to bind it. It is true that the courts hold that an attorney representing a claimant has, by virtue of his employment, no implied authority to release or compromise his client’s claim or cause of action. Among the cases in this. State to this effect- are: State v. Clifford, 124 Mo. 492, 28 S. W. 5; David v. Hall, 90 Mo. 659, 3 S. W. 382; Melcher v. Exchange Bank, 85 Mo. 362; Semple v. Atkinson, 64 Mo. 504; Bay v. Trusdell, 92 Mo. App. 377; Barton Bros. v. Hunter, 59 Mo. App. 610. But this rule has here no application. The signing of this instrument was not the release or compromise of a claim or cause of action in. the hands of defendant’s counsel for enforcement.’ It is true that the statute contemplates that a plaintiff may, if he desires, utilize such an offer as a confession of judgment for the amount therein specified. But the prevailing rule, supported by the great weight of authority, is that [422] an attorney of record in a canse lias implied authority to even confess judgment for his client. [See Taylor v. Land & Mortgage Co., 106 Ga. 238; Thompson v. Pershing, 86 Ind. 303; Wood v. Wood, 59 Ark. 441, 28 L. R. A. 157, 27 S. W. 641; Garrett v. Hanshue, 53 Ohio St. 482, 35 L. R. S. 321; 4 Cyc, 936; 3 Amer. & Eng. Ency Law, 368; 2 Ruling Case Law, sec. 71.] In Scarritt Furniture Company v. Moser & Company, 48 Mo. App. 543, this court, in an opinion by Thompson, J., held that an attorney of record in a cause had implied authority to stipulate that the case should abide the result of other litigation of a like character, under the control of other counsel, .saying: “An attorney in charge of a case has implied authority from his client to enter into any stipulation for the control of the .progress of the action, even to the entering of judgment in favor of the opposite party. [Thompson v. Pershing, 86 Ind. 304, 310; 1 Thomp. Trials, sec. 191, and cases cited.]” But aside from this, when an attorney who has appeared for a party litigant, and is an attorney .of record in the cause, performs an act of this character, ,his authority so to do is presumed, prima facie at least; and the burden of showing his want of authority rests upon the party who questions it, unless such authority is denied by the attorney’s client. [See State ex rel. v. Muench, 230 Mo. 236, 130 S. W. 282; Riley v. O’Kelly, 250 Mo. l. c. 662, 157 S. W. 566.] Such presumption naturally attends the acts of attorneys, duly authorized to practice at the bar, and follows from the confidence reposed in them as sworn officers of the court and the consequent belief in their honor and integrity. Upon this presumption judicial action is time and again predicated; and any other course would lead to interminable confusion and disorder. We are unable to conceive upon what theory plaintiff, without having raised any question of'the authority of defendant’s counsel to make this written offer in defendant’s behalf, at the time of the service thereof or at any time prior to the hearing on the motion, may [423] ignore it altogether upon the theory that it was not an offer made by defendant as the. statute requires. It carried with it, upon its face, the presumption that it was made by the defendant’s authority. And assuming, for the sake of argument merely, that plaintiff had any cause to dispute the authority of defendant’s counsel, it devolved upon plaintiff to make timely objection to the instrument on this ground. Plaintiff could not wholly ignore the offer thus made, and thereby frustrate the wholesome object and purpose of the statute. The contention that the written offer is insufficient in form is without merit. The meaning of the statute is that if the plaintiff does not recover, an amount in excess of the offer all costs accruing after the date of service of the offer are taxable against him. [See Rosenberger v. Harper, 83 Mo. App. 169; Brown v. Cole, 146 Mo. App. 705, 125 S. W. 537.] And it was not necessary for defendant to specify in the motion the items of cost which had accrued subsequent to the service of the offer. -The motion was not one to retax costs. Following the rendition of the verdict and the entry of judgment thereupon, and on the same day, defendant filed this motion, the object of which was to have the costs taxed in accordance with section 1965, supra. The order of the trial court-overruling defendant’s said motion is reversed and the cause remanded with directions to that court to reinstate the motion and sustain it. Reynolds, P. J., and Nortoni, J., concur.