Opinion
No. 40411.
April 1, 1957.
1. Attorney and client — action by client for personal injuries under Jones Act — plea of settlement and release by defendant — evidence on plea in bar sustained finding that defendant had no notice of attorney's assignment of interest in case.
In action by client for personal injuries under Jones Act wherein answer of the defendant set up in bar of action a written settlement and release by client of all claims against defendant, and client's attorney, who held a written assignment of an interest in client's case, was admitted as party-plaintiff but attorney had not filed his contract in cause so as to effect notice as provided by applicable statute, evidence on plea in bar, which was not contested by client, sustained finding that defendant had had no knowledge or notice of employment contract upon which attorney predicated his claim. Sec. 1448, Code 1942.
2. Jury — Jones Act — jury trial waived on issue presented on hearing of plea in bar.
Even if it be assumed that the Jones Act gave seaman right to have jury try issue as to whether action was barred by written settlement and release, such right would be deemed waived where motion had been made to have issue heard by Trial Judge separately, and Trial Judge had so ordered, and no objection to the procedure, or request for jury trial of issue, had been made. Jones Act, Sec. 688, 46 U.S.C.A.
3. Continuance — plaintiff's oral motion for continuance at close of testimony for purpose of taking testimony of witness — properly denied.
It was not error to deny plaintiff's oral motion, at close of taking of testimony, for continuance for purpose of taking testimony of witness, where affidavit was not made as required by statute and there was no showing as to what the testimony of witness would be, or that due diligence had been used to procure his presence as witness, or that continuance was sought in order that justice might be done and not merely for delay. Sec. 1520, Code 1942.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, Judge.
Karl Wiesenburg, Pascagoula, for appellant.
I. The validity of a release under the Jones Act is determined by Federal law, and not by the law of the forum. Garret v. Moore-McCormack Co., 317 U.S. 239, 87 L.Ed. 239.
II. The Trial Court erred in sustaining the plea in bar without submitting the issue to the jury under proper instructions, the jury, under Federal law being required to pass on the validity of a release executed under the Jones Act. Guerrero v. American-Hawaiian Steamship Co., 222 F.2d 238; Camerlin v. New York Cent. RR., 199 F.2d 698; Thompson v. Coastal Oil Co., 119 F. Supp. 838, 221 F.2d 559, 350 U.S. 817, 100 L.Ed. 731, 76 S.Ct. 54; Sec. 1475.5, Code 1942.
III. The appellee failed to meet the burden of proof required under the Jones Act to sustain the validity of the release, proving only that the release had been signed and $500 paid, but failing to establish the facts and circumstances surrounding the obtaining of the release. Hume v. Moore-McCormack Lines, 121 F.2d 336, 314 U.S. 684, 86 L.Ed. 547, 62 S.Ct. 188; Thompson v. Coastal Oil Co., supra.
IV. The Trial Court erred in overruling the motion of appellant for a continuance for the purpose of taking the testimony of Cecil McGee, the agent of the appellee who actually obtained the release and paid the money therefor.
V. The Trial Court erred in permitting the introduction of the release executed by Dearman over the objection of appellant, the appellee offering no proof other than that the release has been signed and the $500 paid.
VI. The appellee had notice of the assignment equivalent in law to knowledge. Crawford v. Brown, 215 Miss. 489, 61 So.2d 344; Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; 39 Am. Jur., Sec. 12 p. 238; 28A Words and Phrases pp. 500-07.
VII. The appellee had notice of assignment by notice to his attorney. First Natl. Bank v. Johnson, 177 Miss. 634, 171 So. 11; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; Rhoads v. Peoples Bank Tr. Co., 200 Miss. 606, 27 So.2d 552; Edwards v. Hillier, 70 Miss. 803, 13 So. 692; Crawford v. Brown, supra; Whitsel v. Hoover (Tex.), 120 S.W.2d 930; Smith v. Farmers' Ginning Assn., 201 Miss. 573, 29 So.2d 663.
VIII. The consideration was grossly inadequate and there was collusion between the parties. Huff v. Bear Creek Milling Co., 117 Miss. 509, 77 So. 306; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Keanum v. Southern Ry. Co., 151 Miss. 784, 119 So. 301; 5 Am. Jur. 372; Anno. 67 A.L.R. 462.
IX. The appellant cannot be deprived of his rights under his assignment. Railroad v. Packwood, 59 Miss. 280; Wells v. Edwards Hotel, 96 Miss. 191, 50 So. 628; Lamar Hardware Co. v. Case, 143 Miss. 277, 107 So. 868; 5 Am. Jur., Attorneys at Law, Secs. 225-26; 2 Am. English Encyclopedia of Law, p. 1017.
Watts Colmer, Pascagoula, for appellee.
I. Cited and discussed the following authorities: Guerrero v. American-Hawaiian Steamship Co., 222 F.2d 238; In re Adonis Case, 38 F.2d 743; McGraw v. States SS. Co., 116 F. Supp. 446; Zerkowsky v. Zerkowsky, 160 Miss. 278, 131 So. 647; Wells v. Edwards Hotel, 96 Miss. 191, 50 So. 628; Cochran v. Henry, 107 Miss. 233, 65 So. 213; Mosely v. Jamison, 71 Miss. 456, 14 So. 529; New Orleans N.E. RR. Co. v. Tally Mayson, 109 Miss. 393, 69 So. 186; Secs. 1448, 1475.5, Code 1942; 5 Am. Jur., Attorneys at Law, Sec. 116; 39 Am. Jur., Notice and Notices, Sec. 13; Anno. 121 A.L.R. 1122.
In April, 1955, H.J. Dearman filed a suit in the Circuit Court of Jackson County, Mississippi, against V.W. Boats, Inc., to recover damages for personal injuries suffered by Dearman, as he claimed, as a result of negligence of Boats, Inc., in failing to furnish him as a servant of Boats a reasonably safe place in which to work.
On May 27, 1955, that suit was dismissed by Dearman. On July 13, 1955, Dearman, by declaration, sued Charles L. Kaufman in said county to recover damages for the same injuries resulting from the same alleged negligence.
Kaufman answered the declaration denying all liability. On October 31, 1955, Kaufman filed an amended answer setting up in bar of the action a written settlement between himself and Dearman and release by Dearman of all claims against Kaufman. That instrument was dated September 5, 1955.
On November 21, 1955, Donald W. Cumbest was admitted as a party-plaintiff in the action. He alleged that Dearman had engaged him as his attorney in this matter under a written contract of employment, which was either an assignment of a fifty percent interest in the cause of action or a fifty percent contingent fee in whatever amount might be recovered by Dearman. Kaufman answered that this contract was not on record and he knew nothing of it at the time he settled the cause of action with Dearman.
Kaufman moved the court to separately hear and determine the plea in bar, which was done. On April 13, 1956, the trial judge sustained the plea in bar and rendered judgment for Kaufman. From that action Cumbest appeals. Dearman made no contest in the lower court and did not appeal to this Court. He is not before this Court.
(Hn 1) Cumbest says that this action was under what is called the Jones Act, (Section 688, Title 46, Federal Judicial Code), relating to the rights of seamen, and that the finding of the trial judge that Kaufman had no knowledge or notice of the contract between Dearman and Cumbest was erroneous. The evidence is voluminous. It is unnecessary to detail it. It is enough to say there was no evidence whatever that Kaufman had any actual knowledge of the existence of that contract, nor is the evidence sufficient to charge him with notice thereof — at least, it is ample to sustain the finding of the trial judge to that effect. Section 1448, Miss. Code 1942, provides: "If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the case, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit." Cumbest did not file his contract. He did not comply with that section.
(Hn 2) Dearman was a seaman. He was injured while performing services as a fisherman in the Gulf of Mexico. He says that under the "Jones Act", he had a right to have the plea in bar issue passed upon by a jury. We do not adjudicate whether he did have such right under the circumstances here for the reason that if the right existed Cumbest waived it. Motion was made that the bar issue be heard by the trial judge separately. He so ordered. No objection was made to that procedure. No request was made for a jury trial of the issue. A large volume of testimony was taken before the trial judge on the question. This was a waiver by Cumbest of the right to have the issue passed upon by a jury if the right existed. It should be kept in mind too that this was an issue between Cumbest, who was not a seaman, and Kaufman, not a contest by or against Dearman.
(Hn 3) At the close of the taking of the testimony on the issue in bar, counsel for Cumbest orally moved "for a continuance for the purpose of taking the testimony of Cecil McGee * * *". No affidavit was made as required by Section 1520, Miss. Code 1942. There was no showing as to what the testimony of McGee would be, or that due diligence had been used to procure his presence as a witness, nor was it shown that the continuance was sought that justice might be done, and not merely for delay. Indeed, the trial judge asked counsel for Cumbest "You don't know what he will testify to?" The record does not disclose an express answer by counsel to that inquiry, but evidently the judge understood him to say he did not know what McGee's testimony would be, for the trial judge then remarked "* * * counsel does not know what the witness would say", and counsel made no response to that. The court committed no error in refusing to continue the case.
Affirmed.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.