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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 assignment 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
in a judgment for the defendant upon a demurrer to the declaration. The plaintiff declared upon a contract in which the plaintiff agreed to prosecute suits for the recovery of property, to pay the costs and be compensated by a part of the property to be recovered, and it was further stipulated between the parties "that if any compromise should be effected, the same should be the joint act and consultation of the parties to said indenture." At the conclusion of the opinion is the following clear and unmistakable statement: "The stipulation in the contract, on which the opinion and judgment of the court are chiefly predicated, and to which they have directed it to be confined, is that which prevents Vattier from compromising and settling the matters in controversy, without the consent and concurrence of the other contracting parties. This point being considered sufficient, the court forbear to give an opinion on any other. As the provision on the subject of cost is not set out in the declaration, and the defendant has demurred without oyer, that feature in the contract has not been considered."
So that Key v. Vattier, 1 Ohio, 132, is a decision upon the precise question now under review. The court was equally explicit in Weakly v. Hall, 13 Ohio 167, 42 Am. Dec. 194, when it said: "It is unnecessary, perhaps, to say anything in reference to the lien which is set up in the replication, and which, it is insisted, could not be discharged by the release of Weakly to Hall. But we take this occasion to say that the law of Ohio will 269 tolerate no lien in or out of the profession, as a general rule, which will prevent litigants from compromising or settling their controversies, or which, in its tendencies, encourages, promotes or extends litigation. We think the replication is bad, and the demurrer is sustained. Judgment for defendant."
The question was again before this court in Lewis v. Lewis' Admx., 15 Ohio, 715, and it was again said that: "A contract with an attorney to prosecute a suit containing a stipulation that the party should not have the privilege to settle or discontinue it, without the assent of the attorney, would be so much against good policy, that the court would not enforce it. Much less will a court raise an implied contract, in order to encourage and foster litigation."
In Brown v. Ginn, 66 Ohio St. 316, 64 N. E. 123, the court, Spear, J., delivering the opinion, said: "Again, if this paper effected the object, and was a real transfer of these accounts to the attorney, the several parties of the second part
thus parted with all right to control the litigation or to compromise it without the consent of the attorney, and this inability was made doubly so by the fact that no one of the second parties had any sort of interest in the portion of the demand which rested upon the services of any other. Upon all the authorities, such an arrangement is champertous, and will not be maintained by the courts. . . . . So that if the agreement vested in the attorney the legal title to the accounts so as to constitute him the real party in interest, and thus enable him to bring 270 an action in his own name, such action cannot be maintained because against public policy, while, if he is not, within the meaning of section 4993, the real party in interest, the case would fail for that reason."
We have brought together these quotations from former decisions in order to present a conspectus, which demonstrates that this court has always maintained a consistent and unambiguous attitude in regard to contracts of the kind which we have in this case. Some further instructive illustration may be found in Pennsylvania Co. v. Lombardo, 49 Ohio St. 1, 29 N. E. 573, 14 L. R. A. 785, opinion by Minshall, J., 5, 6; Stewart v. Welch, 41 Ohio St. 483; and remarks of Okey, J., in Diehl v. Friester, 37 Ohio St. 473.
These cases also show that the illegal stipulation renders the whole contract illegal and indivisible; and that whenever the illegal stipulation was inserted, it so far tainted the whole contract that no relief whatever was granted upon the contract. It could not well be otherwise. If the plaintiffs may waive the clause as to consent, ratify the compromise made by the client and recover from the defendant, when both parties to the compromise have acted on the theory that the contract is illegal and voidable, then the doctrine of the cases which we have cited means nothing in practice; for it may be evaded in every case. If, notwithstanding the illegal restriction upon the right to compromise, an attorney may nevertheless acquire such an interest in his client's cause of action that the defendant thereto is answerable over to him after a compromise effected with the client, the real party in interest, then the doctrine of the cases 271 is a mere figment, and may as well be ignored; for the attorney will thereby have gained as much as if the veto on his client's right to compromise had been sustained. It does not seem to us that the contention of the plaintiffs is supported by law
or considerations of justice: 15 Am. & Eng. Ency. of Law, 2d ed., 988, and note 4.
Price, C. J., Shauck, Crew, Summers and Spear, JJ., con
Contracts Between Attorneys and Their Clients are discussed in the note to Shirk v. Neible, 83 Am. St. Rep. 159; and the extent to which a litigant may control a cause in which he has appeared by attorney is discussed in the note to Cameron v. Boeger, 93 Am. St. Rep. 169. A clause in a contract of retainer between an attorney and client prohibiting the latter from making a settlement of the litigation without the consent of the former is void as against public policy; and a clause in a contract of retainer fixing the attorney's fee at a percentage of the money recovered, so closely connected with another clause void because forbidding the client to settle the litigation as to be part of a single plan, falls when the client repudiates the latter clause, and the attorney may then recover for his services according to the real value, independently of the original provision for compensation: Matter of Snyder, 190 N. Y. 66, 123 Am. St. Rep. 533, and see cases cited in the cross-reference thereto.
MILLER v. BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY.
[78 Ohio St. 309, 85 N. E. 499.]
NEGLIGENCE, Damages Recoverable Because of. The defendant in an action for negligence can be held liable to respond in damages only for the immediate and proximate result of the negligent act, and in determining what is the direct and proximate cause, the rule requires that the injury sustained be the natural and probable consequence of the negligence alleged. (p. 706.)
NEGLIGENCE-Damages Resulting from Fright, When not Recoverable. In an action for negligence, unaccompanied by any act of wantonness or intentional wrong, there can be no recovery for the alleged physical injury caused by mere fright or shock. (p. 706.)
Wallace D. Yaple, for the plaintiff in error.
Edward Barton and John P. Phillips, for the defendant in
315 CREW, J. The amended petition in this case con
tained two alleged causes of action, each separately stated and numbered. The wrong complained of by plaintiff in her first cause of action was, that the defendant railroad company, in operating and managing a certain locomotive to
which were attached a number of cars, negligently and with great force shoved or pushed said cars off of the end of its switch track, across a public street and against and into the dwelling-house of plaintiff, thereby injuring and damaging said dwelling-house and other property of the plaintiff to the extent of five hundred dollars. As a second and separate cause of action, she alleged that at the time of said accident she was standing on her own premises 316 within a few feet of the point where said cars struck her dwellinghouse, and in consequence, and as the result of witnessing said accident, "she suffered a severe nervous shock that shattered her nervous system and caused her great bodily pain and mental anguish, and permanent injury to her person and health." There was no claim or allegation in said petition that plaintiff at the time of said accident received any actual bodily injury, or that the negligence of the defendant was willful or wanton. A demurrer addressed to this second cause of action was sustained by the court and said cause of action was dismissed, and the present record presents for determination the single question whether or not in an action for negligence, unaccompanied by any element of wantonness or intentional wrong, there can be a recovery of damages for alleged physical injury caused by mere fright or shock. While the precise question thus presented has not heretofore been determined by this court, it has received the consideration of, and been decided by, courts of last resort in many of the other states; and the right to recover for injuries so caused has been almost universally denied. In the case of Ewing v. Pittsburgh etc. Ry. Co., 147 Pa. 40, 30 Am. St. Rep. 709, 23 Atl. 340, 14 L. R. A. 666, a case very like the present case, the plaintiffs alleged in their petition, as and for their cause of action, that in consequence of a collision of trains on defendant's railway, "The cars of the defendant company were broken, overturned and thrown from the track, and fell upon the lot of ground and premises of the plaintiffs, and against and upon the dwellinghouse of plaintiffs, and thereby and by reason thereof 317 greatly endangered the life of the said Eva Ewing, then being in said dwelling-house, and subjected her to great fright, alarm, fear and nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick, and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby per