Opinion
13430
June 14, 1932.
Before TOWNSEND, J., Richland, July, 1930. Affirmed.
Action by James Y. Perry against Atlantic Coast Life Insurance Company and others. From an order sustaining a demurrer to the complaint, plaintiff appeals.
The order of W.H. Townsend, presiding Judge, sustaining the demurrer follows:
The complaint alleges: That on the 1st March, 1930, the defendant, Burch, employed plaintiff, an attorney of this Court, to bring an action against the Atlantic Coast Life Insurance Company and Jesse W. Orvin, the two other defendants in this action, to recover damages for a slander alleged to have been uttered by the two last-named defendants of and concerning said Burch. That Burch agreed to pay plaintiff for his services in the slander action $100.00 retainer, and in addition thereto one-third of the amount therein recovered by either suit or compromise. On March 3d this plaintiff notified the defendants in the slander action of his retainer; and on the 1st March, 1930, commenced in this Court the contemplated action for slander. Thereafter plaintiff and defendants in the slander action, without the knowledge or consent of this plaintiff, attorney of record for the plaintiff in the slander action, entered into an agreement between themselves to settle, release, and discharge all claims existing between the parties to that action; that such agreement between said parties was for the purpose of defrauding the plaintiff and of depriving him of his just compensation for services rendered in the preparation of, and in connection with, the prosecution of said slander action; and that by said joint acts of the defendants in settling claims for slander, and in preventing the further prosecution of such action and the further performance of the contract of retainer, this plaintiff has been injured and damaged in the sum of $5,000.00
The plaintiff is not suing on the contract with his client, but seeks damages from the defendants jointly on the ground that, by their joint tortuous combination and agreement, the defendants jointly have injured plaintiff by preventing his receiving the compensation contemplated in his contract with his client. The contract of retainer between the plaintiff and his client, Burch, stated in the fourth paragraph of the complaint, is executory merely, and does not undertake to give plaintiff any legal or equitable interest in the cause of action for slander prior to reduction to judgment. Miller v. Newell, 20 S.C. 123, 140, 47 Am. Rep., 833; Weller v. Jersey City, Hoboken Patterson St. Ry. Co., 68 N.J. Eq., 662, 61 A., 459, 460, 6 Ann. Cas., 442, 444.
In Miller v. Newell, supra, it was held that a cause of action for slander is, until reduced to judgment, a tort of a strictly personal character, and therefore not assignable. This decision is conclusive of the present case, unless such chose in action has since been made assignable by statute (Code Civ. Proc. 1922, § 375).
As said of a similar statute by the New Jersey Court in Weller v. Jersey City, etc., Ry., Supra "We do not think that the statute appealed to has this effect. It does not attempt to change the character of those rights of action, to transpose them into property rights, and thereby render them assignable * * * during the lifetime of the party injured."
For these reasons I conclude that the complaint states no joint cause, or other cause, of action against the defendants.
It is therefore ordered and adjudged that the demurrer be, and is hereby, sustained, and the complaint dismissed.
Messrs. D.W. Robinson and D.W. Robinson, Jr., for appellant, cite: When breach of contract accompanied by fraudulent act, punitive and compensatory damages may be obtained: 70 S.C. 115; 49 S.E., 232; 116 S.C. 391; 108 S.E., 153; 17 S.C. 139; 108 S.E., 189; 122 S.C. 222; 115 S.E., 634; 159 S.C. 366; 157 S.E., 74.
Mr. C.T. Graydon; for respondent, cites: Fraud must be alleged and proven: 58 S.C. 56; 76 S.C. 21; 87 S.C. 331; 96 S.C. 240; 105 S.C. 72; 112 S.C. 340; 120 S.C. 88; 152 S.C. 108; 157 S.C. 381. Attorney has no right in a cause of action until reduced to judgment: 20 S.C. 123; 68 N.J. (Eq.), 6. Party to a suit has right to compromise at all times. 2 R.C.L., 1000; 110 Tenn., 157; 100 A.S.R., 795; 96 Minn., 51; 114 A.S.R., 69; 200 Ill., 84; 93 A.S.R., 165; 115 N.Y., 527; 12 A.S.R., 828.
June 14, 1932. The opinion of the Court was delivered by
The order of the Circuit Judge, sustaining the demurrer in this cause, sufficiently states the facts alleged in the complaint. It will be reported, and, in our opinion, must be affirmed. In addition to the authorities cited in the order, see the recent case of Black v. Kirkland Seed Company, 163 S.C. 222, 161 S.E., 489.
It appears, under the decisions of our Court, that attorneys have little protection in the matter of collecting compensation due them in cases where they are employed on a contingent basis, and impecunious plaintiffs in such cases have a great advantage over their lawyers. If a lawyer beats a client out of money, the client can apply to the Courts and the bar association of the State for redress, even to the extent of the suspension or disbarment of the lawyer. If a client, who cannot be made to respond to a judgment, beats the lawyer out of his fee, the lawyer usually has to "grin and bear it."
The lien of a lawyer extends only, it seems, to papers of the client in his possession, and these papers, generally, have little value in the matter of collecting fees. Under our statutes, many liens of real value have been given. Landowners have liens over crops and other personal property for rent. Sellers of goods have liens over them for the purchase money. One injured in person or property by an automobile or airplane has a lien over the machine for the damage done. A common carrier has a lien on goods transported by it for freight charges. Employees in certain manufacturing establishments have liens on the output for their wages. Mechanics of almost every class have liens for their labor. Even the owner of a stock horse, jack, bull, boar, or ram has a lien on the issue of the female animal for the amount of the claim for services rendered.
With a strong bar association in this State for many years, and with the powerful influence lawyers have had in the General Assembly, it seems somewhat strange and singular that so little has been done, or attempted to be done, to protect attorneys in the collection of fees and compensation they are entitled to receive for their professional services. Perhaps the failure of lawyers, under the circumstances, to secure better protection for themselves, while so often seeking to protect other people in their rights, is to the great credit of the legal profession. From decisions we have read, it appears that some states, including Georgia, New York, and Tennessee, have statutes which give attorneys protection, and these enactments appear to us to be just and reasonable.
The order appealed from is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. S.W.G. SHIPP, ACTING ASSOCIATE JUSTICE, concur.