صور الصفحة
PDF
النشر الإلكتروني

Ex. D. 441, the judges, Carins, L. C., Cockburn, C. J., and Brett, L. J., each of them doubted its correctness. They expressed the opinion that the correctness of the rule “must, to a great extent, depend on the purview of the legislature in the particular statute and the language which they have there employed."

In Cowley v. Newmarket Local Board, [1892] App. Cas. 345, Lord Herschell expressly concurs in the opinion expressed by Lord Cairns.

In Gorris v. Scott, (1874) 9 Ex. 125, in an action to recover for loss of sheep washed overboard, in consequence of there being no pens and no battens or footholds, as required by certain regulations adopted under authority of the contagious diseases act, it is held: “That the object of the statute and the order being to prevent the spread of contagious diseases among animals, and not to protect them against perils of the sea, the 74 plaintiffs could not recover.” And again : When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of a different kind is not entitled to maintain an action in respect of such loss."

Looking to the statute and the previous legislation in this state it cannot be said that the object was to provide for the safety of travelers upon the highway; the object was to prevent trespasses upon the premises of others. The remedy in damages given by section 4251, Revised Statutes, was not entirely satisfactory. In many, if not in most, instances of trespass the injury was slight, and the amount of damages recovered would not equal the amount expended in recovering it, to say nothing of the inconvenience and the animosities engendered, and so in addition to the liability for the injury done by cattle running at large upon the premises of another, without reference to the fence that inclosed them, it was made unlawful for the owner to suffer them to run at large, and it was made the duty of public officers, on view or information that cattle were running at large, to take them up and confine them, and if an officer willfully neglected his duty in that respect, he was liable to a fine and imprisonment.

In the absence of the statute it is the duty of the owner not to suffer a known vicious animal to run at large upon the highway, or one not vicious under circumstances where he

a

[ocr errors]

should 75 apprehend that the safety of travelers would be in danger.

In Dickson v. McCoy, 39 N. Y. 400, it is held: “It is such negligence for the owner of a horse to turn him loose, to go from the stable into the street of a city, unattended, as will make him liable for all injuries occasioned thereby." In Wasmuth v. Butler, 86 Hun, 1, 33 N. Y. Supp. 108, it is held that it is actionable negligence to leave a horse untied and unattended in the streets of a city. In Goodman v. Gay, 15 Pa. 188, 53 Am. Dec. 589, it is held: “If the owner of a horse suffers it to go at large in the streets of a populous city, he is answerable for a personal injury done by it to an individual without proof that the owner knew that the horse was vicious." In Barnes v. Chapin, 4 Allen, 444, 81 Am. Dec. 710, Chapman, J., states the rule thus: “The general doctrine of the common law as to injuries done by domestic animals seems to be, that the owner is not liable unless he has been in some fault. He is liable for their trespasses when it was his duty to confine them and he has neglected to do so. In Leame v. Bray, 3 East, 595, Lord Ellenborough says: 'If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass.

Zumstein v. Shrumm, 22 Ont. App. 263, is a case not unlike the case under consideration and it was there held: “The owner of a turkey cock, which without negligence strays upon the highway contrary to a by-law of the municipality is not liable for damages resulting from a horse 70 taking fright and running away at the sight of the bird acting as turkey cocks usually do.”

The object of the statute not being the safety of travelers on the highway, the petition does not state a cause of action in the absence of an averment of facts implying that the injuries resulted from the negligence of the defendant in the performance of a duty owing to the plaintiff, and the court of common pleas properly directed a verdict.

Judgment affirmed.
Shauck, C. J., Price, Crew, Spear and Davis, JJ., concur.

[ocr errors]

.'"

Animals in Highway.—The principal case is not supported by some authorities. Thus it has been held that one who turns his cattle loose into a highway, leaving them unattended, in violation of a statute, assumes all the risks of such action, and is liable for damage done by them in overturning a sulky lawfully in the highway: Shipley v. Colclough, 81 Mich. 624, 21 Am. St. Rep. 546. A horse unlawfully at large on a highway is a nuisance, and its owner is liable for any damage done by it, whether the animal is vicious or not: Baldwin v. Ensign, 49 Conn. 113, 44 Am. Rep. 205; where the owner of a sucking colt kicked and killed by a horse which has been turned loose in the highway, without a keeper, while it is following its dam led by her owner in the highway, he being in the exercise of reasonable care, may recover damages of the owner of the horse, although the horse was not vicious: Barnes v. Chapin, 4 Allen, 444, 81 Am. Dec. 710; and the owner or custodian of swine is liable for injury occasioned by permitting them to run at large in the highway without a keeper, although he did not kpow they were in the highway at the time of the injury: Jewett v. Gage, 55 Me, 538, 92 Am. Dec. 615.

DAVY v. FIDELITY AND CASUALTY INSURANCE

COMPANY.

[78 Ohio St. 256, 85 N. E. 504.] ATTORNEYS AT LAW-Contingent Fees, Contracts for.–An attorney and client may lawfully agree upon compensation to the attorney contingent upon the amount to be recovered, and such contract may be a valid consideration for the assignment of an interest in the judgment if already obtained, and may be enforced in equity. (p. 695.)

ATTORNEY AND CLIENT, Contract Containing Express or Implied Assignment of the Cause of Action. If a contract between an attorney and client contains an express or implied assignment of an interest in the subject of the litigation, or otherwise limits the right of the client to settle or compromise with his adversary without the consent of anybody else, such limitation makes the statute void. able at the option of the client, and its illegality may be pleaded as a defense in any action founded upon the contract, and the claim may be settled or compromised without the consent of the client and without creating any liability in favor of the attorney against the party so settling or compromising. (p. 696.)

ATTORNEYS AT LAW, Contract with-Entirety of.-A contract between an attorney and his client for the prosecution of a claim by the former and that the latter shall have no power to settle or compromise his claim without the consent of the attorney is entire and indivisible, and if this stipulation is invalid, there can be no recovery on the contract. (p. 696.)

ATTORNEY AND CLIENT-Contract for Fees, When cannot Make the Adverse Party Answerable.-If, by the terms of a contract between an attorney and his client, the former becomes entitled to a share of the recovery, and the adversary is deprived of the right to settle or compromise without the consent of the attorney, and the latter becomes entitled to a specified share in the amount to be recovered, such contract is indivisible and wholly void as against such adversary, and no recovery can be sustained against him by the at. torney, because of his settlement of the demand sued upon. (p. 698.)

Action by plaintiffs, copartners in the practice of the law, against the defendant corporation for two-fifths of the amount paid in settement of a claim against it. The plaintiffs, on the fourteenth day of September, 1903, entered into an agreement with Margaret R. Slagle to prosecute an action upon a policy issued to her late husband insuring her against disability or death resulting from accident. By the terms of the contract between her and the plaintiffs they were to have forty per cent of the amount realized from the policy, whether by judgment or by settlement. After the plaintiffs had brought an action, the plaintiff therein made a settlement with the defendants in the present action, and caused her suit to be dismissed.

The trial court, on June 29, 1905, directed judgment in favor of the defendant and against the plaintiffs, and such judgment was subsequently affirmed by the circuit court.

William H. Gilbert and Leonard H. Shipman, for the plaintiffs in error.

A. F. Broomhall, for the defendant in error.

265 DAVIS, J. The theory upon which this action is based is that an attorney may not only contract with his client for a contingent fee, but that he may, at the same time and upon the same consideration, acquire such an interest in his client's cause of action before judgment as to prevent the latter from settling his case without consent of the attorney. If this theory is sound, the motion for judgment on the pleadings should have been overruled; otherwise it was properly sustained.

266 It is, beyond question, the law in this state that attorney and client may lawfully agree upon compensation to the attorney contingent upon the amount to be recovered, either by settlement or by judgment; and it is also settled that such contract may be a valid consideration for an assignment of an interest in a judgment already obtained, such as might be enforced in equity (Pittsburg etc. Ry. Co. v. Volkert, 58 Ohio St. 362, 50 N. E. 924); but, as we remarked recently (Pennsylvania Co. v. Thatcher, 78 Ohio St. 175, 85 N. E. 55), an attorney's lien before judgment has not been heretofore distinctly recognized in this state, and it has hitherto remained an open question, and one of much doubt, whether an attorney may before judgment acquire such an interest in the subject matter of his client's claim or cause of action as that the defendant to such claim or cause of action is bound to take notice of it. The questionable character of such a proposition arises from two considerations. First, an interest in a cause of action would seem to imply the right to be consulted in negotiations for settlement and the right to prevent a settlement which might be acceptable to the client; second, an interest in the proceeds of a settlement is an interest in a fund which has no existence until the settlement is agreed upon and the money paid over, and therefore the attorney's interest is in the fund in the hands of the client. In the case in hand, although the plaintiffs aver in their petition that their client “thereby”—that is, by the contract in writing—“made an equitable assignment to the plaintiffs of an undivided two-fifths interest in said cause of action and of the proceeds to be 267 realized therefrom, either by settlement or judgment"; yet it appears from the contract itself, which is set out in full in the defendant's answer, that there was no express assignment of an interest in the cause of action or of the proceeds to be realized therefrom, but that there was an express agreement that the client should not compromise or settle the cases without the approval and consent of the others.

It appears, therefore, that whatever may be the form of the contract, whether it contains an express assignment of an interest in the subject matter of the client's claim or an implied assignment thereof, or no assizument at all, the really vital question in all of these cases is this : Does the contract contain an express or implied limitation upon the right of the client to compromise and settle his claim with his adversary without the consent of anybody else? When such a limitation appears in the contract, the contract is voidable at the option of the client, and its illegality may be pleaded as a defense in any action founded on the contract; and the defendant to the suit concerning which the contract was made may, with or without notice of the contract, compromise with the plaintiff without the knowledge or consent of the plaintiff's attorney, and will not be liable to the attorney for his part: North Chicago St. R. R. Co. v. Ackley, 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177, reversing the judgment of the appellate court in the same case: 58 Ill. App. 572; Boardman v. Thompson, 25 Iowa, 487.

This court has spoken on this subject so frequently and definitely that there ought to have been no misunderstanding of its position. Key v. 268 Vattier, 1 Ohio, 132, resulted

« السابقةمتابعة »