*1 604 by puted place contemplated man- under at a ager and time tbe 5 first subsec. instead of first performance 1, 1 8309, of tbe so subsec. of section tbe article R. Part. condition S. by jury imposed finding average The bim. of as an $4.16% daily wage ings, finding was anot of actual earn Injury through is infection of a wound finding nor intended to be but a injury generally compensable classed as a un response in to the direction find “such an Law, Compensation proof in der shows either wound was character abrasion of the skin was the case the the by working amount as she should have earned entering the infection the day prevailing price piece a full at the of the peculiarly or the wound or incident the wort undisputed work.” The evidence that Mrs. of business or paid daily wage Mitchell was not a or a sal actually 'received in ary, paid by compensation but she “the scope employment, the thereafter piece garment.” or She was or seasonal in came or direct contact with some infectious worker; testified, occasional she “I am a matter, although poison poisonous piece garment worker,” “they pay me so ous traceable to the work or matter piece,” paid weekly.” much a and “I am She employed. character of business of Blaess v. the working further testified that in the same she been 885; 137, 161 Dolph, 195 Mich. N. W. piece as a worker Co., Alpena 198 Mich. Dove v. 132, Hide & Leather present employer her for “more than five 253; 164 N. Jasionowski v. Indus W. years,” actually and that she received Commission, App. 112, 22 N. trial 153 E. Ohio employer pay from such checks for 46 weeks 247; Indem. Underwriters v. Heller Millers’ immediately preceding 52 out the weeks her App.) 853; (Tex. 253 Pack Civ. S. W. Houston injury. earnings during Her actual the ing 862; (Tex. App.) v. Mason 286 S. W. Co. Civ. preceding injury aggregat months twelve (Tex. App.) Ins. Ass’n v. Drews Civ. 297 8617.10, ed as admitted and as found the 630; Body Corpora Anderson v. Fisher S. It is believed that under the admitted 506, 938; tion, 214 N. W. 239Mich. Cockrell v. facts first subsection 5 instead of first subsec Commission, 438, Ill. Industrial 673; 327 158 N. E. computation 1 tion would rule the com the Connelly Co., v. Furniture Hunt N. pensation. Indemnity Norwich Union Co. v. 83, 366, Y. N. E. 39 A. L. R. 867. (Tex. App.) 17 S.W.(2d) Wilson facts are unlike Civ. 68. The following distinguishable are The cases Surety (Tex. Co.v. Hibbs Civ. Co., present from the case: Krout v. Hudson App.) 221 W. 303. Mrs. Mitch Therefore 287, 848, 1918F, 200 Mich. 860 Jefferson 166 N. W. L. A.R. weekly average wages ell’s were %2 ; Printing v. Industrial Co. Com wages the amount of annual the found the 575, mission, 312 144 E. 356. In Ill. N. one of jury. Deducting legal per discount of 6 the health, in cases the board of the oth ordered these er the commissioner the cent, lump judgment payment, sum the public health, $2,680.04. should have been employees of the fac vaccination the
“tory. remaining have considered all the as- We The court rested the decision these signments presented, ground proof of error and think affirma cases tively the that the should be overruled. vaccination was showed the not ordered employ brought inor wise about so The is modified ás to allow the er, agency public public compensation lump award of in the terest; and further showed that the infec cent, $2,680.04, per with 6 thereon was not in wise due or attributable tion to July 30, 1929; and, modified, from judgment as so work, place work or or to char things in will be affirmed. The employer. acter of business or service appeal. pay costs of will present employer himself, In through business, case manager, of his furtherance agency, public and not as state vaccinated; employees to be ordered wound received the act of the vaccination vaccination came in direct contact with in matter, poisonous resulting in fectious or injury complained of. BRYANT v. LEWIS et al. Appellant insists that No. 7434. was error there the'discounting proof award of what a the,,, without Appeals of Civil of Texas. Court Austin. jury finding by proper and count would be. The April 16, 1930. legal discount was made the court. There Rehearing, May 14, Motion for On legal sum than a discount at of interest. error less rate It is believed that was no there appellant’s prejudice. See Texas Em Jasper Brock, ployers’ Ins. Ass’n v. 26 S.W. lately (2d) decided this court. next insists that the compensation pellee’s should have been com- *2 Walker, J. -MitchJohnson and N. C. both of Saba,
San for White, Temple, Curtis, M. M. L.A. Belton, White, Wilcox, Taylor & Gard- Miller, Jr., Austin, ner and Robert T. all of appellees. for BAUGH, J. Appeal $3,828, based jury finding on appellees, in favor of F.H. Browning, against appel-
Lewis and W. H. lant, attorneys’ fees. The case un- arose substantially following George der Bryant, bachelor, facts: Lometa, who resided at Lampasas county, Tex., August, died in was, that time H. F. At years Bryant, and for several been, attorney. had his Miss Jennie niece, years his prior for some 35 death, to his girl, and since she was a lived with derstanding made a home for him with the un- agreement or property. death would devise to her all his death, After -the Jennie together niece, with another Mrs. Grace Blackwell, who had also lived with them and been reared babyhood, Miss Jennie from Lampasas, came to the officeof F.H. Lewis at Bryant’s George in search of will. None was many found, and, trips him, after to see employed by appellant F. Lewis was to estab- lish her claim and collect the estate George Bryant for services him, and to recover her interest also as one of A his heirs. written contract was in- entered January 13, 1927,whereby on to receive one-third Lewis was to he recovered for her estate, aas creditor of the amount heir, he should for her as an plus attorney’s fee, a reasonable if suit were necessary to recover her inheritance. The es- George tate of with no claims lant ant administration. valued at appel- it save that of and one of Mrs. also a claim- services rendered to him and costs of Though the contract of Lewis, and an with undivided one-half inter- assigned by therein est him to W. H. Brown- ing, appears it at the time ei- employed, fully agreed ther herself to the W. H. ' associated with with the understanding equally should share provided for in the contract. These partners, prac- two were not independently separate maintained ticed ply prepared February, 1927, appellee Browning. In offices.. and He no presented in” to tbe administrator of and no with connection the em- ployment Bryant’s of Lewis claim estate nor did he have interest in'that claim. His em- Shortly making after said contract ployment wholly was restricted to the claims pellant, into (cid:127) Bryant. payment of Miss Nor was for his with Mrs. Grace Blackwell contract another to *3 dependent upon right services to her a in Lew- against present of her the estate claim is to recover for his services. It true George tha.t and was in the sum of the contract was made in of the name of all for services one-third to receive sums recovered an undivided and one-half interest therein as- by him for both as credi- her a signed by him to not suit-is George Bryant. About an heir tor and two of upon timony undisputed said And contract. the tes- they by ap- employed were months after appellant shows that went to W. diligently appellees pellant, during which time Browning before her contract with Lewis was prosecuted as creditor claims both signed, sought employ represent her, to -himto they discharged heir, were and that, negotiations because and of her with attorneys represent employed other to She Lewis, (Browning) he declined to do un- subsequently her claims her, established who Lewis; less thereupon associated with that $28,- George Bryant against 000, for of the estate representation said of her Blackwell, claims the of Mrs. resisted jointly upon, them part- was entered not as by Lewis, presented and to the same reduced ners, counsel, but as associate with her full $3,000. knowledge, consent, her affirmative approval, and if not at upon quantum for serv- a meruit Suit was request. Under such circum- submitted to Two issues were ices rendered. any stances was not in manner dis- they ap- first that theTo answered the qualified continuing represent appel- to reasonably appellant pellees’ were the to services lant, though independent even an act of Lew- they second, In answer to worth found that the disqualify is did Browning’s the latter. con- appellant “agreed or for consented representation' appellant tinued made tation of her of was not represent plaintiff, Mrs. to dependent upon represen- the continued prosecution her Blackwell in the Grace Lewis also. Bryant’s estate.” said claims The trial, urged appellant on the say, defenses What therefore, we shall con made, cerning conflicting here as stated contentions applies the and her only interests to ' brief, representation are: of Lewis. Nor do'es it pear any that wrong there was intentional having accepted Appellee “(a) em- doing by appellee. said policy Public urge and the ployment Grace Blackwell to from Mrs. profession, however, standards of the $10,000.00against demand the estate of for a claim scrutiny improper close deceased, was adverse to conduct that Geo. ap- relationship agreed urge their to to their that he had cli claim the pellant ents, and, thereby however may he honest his said estate intentions be, attorney appellant, put an should contract with never breached even such -himself “in position may required adverse where if be to choose conflicting duties, the consent between with into or be led to an at anything tempt conflicting for serv- to recover to interests, not entitled reconcile rather contrary legal to than rendered —it to to rights ices enforce their full extent the attorney public policy an law ethics and repre interest which he should alone represent con- adverse where it is Strong interests sent.” Building, to v. International Loan brought templated Union, to suit will have to be 97, 675, & Inv. 676, 183 Ill. 55 N. E. 47 14 11 protect inter- claims and See, Myers enforce also, Crockett, L. R. A. 792. v. parties. ests, 257; the consent of O’Leary even with Durant, Tex. 409, v. 70 Tex. 116; Payne Livingston S. (Tex. v. circumstances, ap- “(b) Civ. if unde'r That App.) 701; ; 253 W. 5 Tex. Jur. 432 6 represent C. permitted J. pellee to Lewis would ; 2 722 C. L. 973. R. appellant Mrs. and re and said the cover for parties, rendered such exceptions There are to this rule where him, fully ex one for must have or some ho plained attorney may represent an adverse interests appellant the nature and extent to conflicting if knowledge with full represent that he to for Mrs. of interest parties; where, consent example, of both Blackwell, and manner in which such ad adjusts he a differences anas arbiter or effects claim, affect aft her would verse compromise parties. between adverse But appellant fully being assured that under er facts, even such cases all and the ex conflicting interest,1 nature of such stood adverse'representation, tent of such should be employment, her consent to such have secured and the evidence fully parties. both understood But no that he conclusive did the attention, is called to our nor have we stance found this, granted the court should have not do any, wherein conflict of interests of peremptory request instruction.” continuing throughout two clients the con represented by troversy We sustain both of these contentions as same attor ney. F. Lewis. But do impossible attorney make it for him relationship and client knowledge ever-increasing even with their full and consent. With the unusual one. is an multiplicity growing laws, com and .the Though there was sustain evidence-to plexity relation civil economic and of our jury finding td consented attorney be ships, service the field representation by Lewis of the claim of important; increasingly neces and the comes sity Mrs. there was no evidence that layman depend average he made full disclosure to ternis fidelity, diligence, judgment, and skill the his of the contract he had with Mrs. Blackwell degree. attorney He in like increases nor of the character their and extent of con good in his faith utmost client the owes his flicting knowledge Appellees urge that, having interests. affirmatively him, dealings claim, appel Blackwell’s him, only facts which all material close to necessarily lant knew the extent nature relationship but disclose would affect their conflicting of their interests. This cannot be consequence legal as well. facts of those *4 presumed. appear It does not to have been case, point if the claimants realized himself. In the instant On this pellee represent figure had “I Lewis undertook to Lewis testified: whom if the es that deceased, George Bryant, $90,000.00, tate was heirs also worth like been Miss Jennie estate, represented against it, his claims and if no other she there recovered what she enough claiming, $20,000.00, to assets more than was there and and her in interest full, pay $10,000.00, been have ample in there the estate ran claims would to both was there respective money them, claims as in conflict their there for both of no would and I don’t representing disqualify both. from him think their interests conflicted.” makes ob of the facts mere statement But the On cross-examination he also testified: “I preventing conflict, an vious said of such irreconcilable expressly Bryant did tell Miss Jennie that attorney diligently prosecuting from both give permission I would like for her to me to simultaneously. estate claims represent case; they Mrs. Blackwell in this presenting- He was $20,400, valued at was together Bryant came to Ifme. Miss Jennie appellant for of which he claim for requested me, attorney, as her to with- as a In addition have one-third fee. towas Blackwell, draw the claim of Mrs. I would obligated thereto, also recover for was to he they if have done it told me their interests one-eighth in the residue her the antagonistic. knew, were As I whether as to. paid, estate, of which he after debts were that attorney, antagon- an -that their interests were cent, per his 10 as fee. Under was to receive istic, might I will state that knew there be Blackwell, subsequently Mrs. contract might some little matters that between arise congenial made, of all he re was to receive one-third he them, having they seemed but to be so and her either as a creditor of said covered estate grown up together lived and and com- an heir. Whatever he recovered or as ing together telling to me and me about these much the for Mrs. Blackweil reduced that wanting represent matters and me to both of estate of which also of the residue them, anything. I Nothing didn’t dream of one-eighth. client, In to receive other was his wanting give was said about Miss Jennie to words, recovered for Mrs. Black more he any Blackwell, of -her estate of Mrs. at and be, well, own would more his but the any I that time didn’t think of conflict of in- smaller, proportionately, be in would terests.” Bryant Jennie which he had of Miss heritance Appellant in testified this connection as to recover for her. he undertaken Had also get my per- follows: “Mr. Lewis never did $10,- Mrs. Blackwell the full recovered 000 asked or-request represent mission Blackwell; for him to Mrs. by him, under his contract with give any I permis- never did him $3,333.33; her, have fee would been his and never talk him sion did about it and he doing he have reduced the in would * * * never talked to me about it. Mr. by $1,- appellant inheritance amount of explain Lewis didn’t to me about the nature hand, represented if he had other On the going present, of the account he was he and solely, appellant and had resisted de and representing never did tell me that in Mrs. of Mrs. which the claim feated necessary be it would for him to' eventually by in fact reduced other at part -estate of the which I was entitled resisting $3,000, torneys same to he would to; any way, never mentioned init I and appellant’s by $1,- increased inheritance have represent never him consented for her in only he would have received which any way.” only $125 as fee. It is ob only therefore, foregoing vious, that, that there an From w-ethink it clear between the conflict interests even if the irreconcilable were such that Lewis clients; placed parties by agreement, but that he his two could there was lacking explanation a written with Mrs. himself Blackwell contract that full position in a where there was such her of the full and nature extent the con- interests, qualify him, conflict between his own inter flict of their to irreconcilable would client, appellant herein, and for both. act The record ests that discloses that subject-matter pellant discharged controversy, in the as to within about arriving made, days sidered in before at the value contract was of W. after said Browning’s Appellant any employed them, other services. of the value of entitled' suits filed finding to a H. any attorneys, resist sérvices of W. and did the claim Browning, independent estate, apart same of and said from Blackwell appellant agreed judgment in an Lewis. was reduced to represented Lewis. Appellant’s she was wherein granted motion is therefore this extent: The of the trial court Miss evidence There was to show that reversed, and the cause remanded as to Bryant on intimate Mrs. Blackwell were Browning, with instructions to the trial having other, former with each terms reared the latter upon hearing only court that sue to be another is- from time she was two determined the reasonable value old; together to Lew came months that, services of W. seeking times, in first numerous is’ office issue, judg- the determination of that subsequently in will of accordingly. ment be rendered In all other respective consulting their claims about him respects opinion our former herein inis Up of dis dis to the -time estate. things to; adhered motion is any charge, no intimation of Lewis had respects in all other overruled. agreement and Mrs. between Miss part, Granted Blackwell, objected overruled. indication nor representation them. of both of to his guilty was not We think that Lewis tentional good wrongdoing or lack of faith accepting Mrs. Black said *5 rep But, of the nature of said well. because conflict resentation and of we conclude irreconcilable GULF, & F. RY. C. CO. v. RUSSELL. subject-matter, in the same their interests No. 7443. he was not entitled re anything Appeals for his services cover Court of Civil Texas. Austin. April 30, unnecessary to discuss the. We deem it by appellant. The value issues raised other the jury supported services found by competent also evidence. record con discloses, clusively think, we that it was con parties, templated understood employ cluding at the time of Browning ment Lewis representing appellant equally in associated and they qualified equally in fee share whatever were to Browning, earned. W. represent appel manner to lant, recover a reasonable was entitled circumstances, Under these services. stated, hereinabove reasons judgment trial is as to court reversed judgment here rendered F. Browning, nothing. As to W. H. take $1,- judgment so that he reformed 914, being of the amount one-half found reformed, jury, and, is as to him af as so firmed. part, Reversed and in reformed and affirmed. Rehearing. Motion On consideration Careful motion rehearing rendering convinced has us that
for in we erred herein for H.W. one-half services of value of the found jury is obvious that considered It arriving of both verdict this issue. Whereas
(cid:127)their on the serv he not ices entitled any compensation, should not have been con-