. Aрpellee heretofore made a motion in this court to require the issuance of a mandate without payment of costs. This motion was overruled without written opinion, on the authority of Texas Employers’ Insurance Association v. Davidson (Tex. Civ. App.)
Since we have concluded that we were in error, we deem it necessary to here reproduce sufficient of the record to illustrate the basis of our viewpoint as to the law.
L.' B. Dapperman, acting by and through his mother, Priscilla Koestеr, and her husband, H. C. Koester, as his next friends, filed suit against appellant, naming himself as plaintiff therein. His petition contains the following paragraph: “That it became necessary for plaintiff to employ attorneys to represent his said claim before said Board and before the courts on appeal, he having employеd, before he so became insane Works & Bassett, a law firm composed of F. P. Works and Jas. W. Bassett, and assigned to them an undivided one-third of all compensation rеceived in this suit in full payment of their attorneys’ fees.” , ,
On the trial he introduced a written contract with his said attorneys which, for the purpose of this opinion, we will assume supрorted the ‘ allegations juát quoted.
The judgment rendered contains, in partj (he following recitals: ‘.‘It further appearing to the Court that said plaintiff L. B. Dap-perman, is a nоn compos mentis, and "that his interests in the" claim and -cauáe Of action-involved herein have been and are no'w being represented by F. P: Works and Jas. W. BaSsett-- -* - and that'-thеir services have .been aij~d are^uegessai;^ -herein ,⅜⅛⅝, that reasonable compensation therefor is one-third of the recovery herein awarded and thаt said one-third of the recovery herein should be adjudged to said F. P. Works and Jas. W. Bassett; it is further ordered and decreed by the Court that one-third of the amount recoverеd herein by the plaintiff L. B. Dapperman, to-wit: the sum of $1609.46, be and the same is hereby adjudged to said F. P. Works and Jas. W. Bassett, with full authority in said F. P. Works and Jas. W. Bassett to receipt for and disсharge said recovery herein * * * and the said defendant Fidelity Union Casualty Company is hereby directed to make payment of said amount direct to said attorneys.”
An affidavit of inability to pay costs was filed in behalf of Dapperman alone. Appellant contends that, since Works & Bassett were parties to the suit and to the judgmеnt, we are not authorized to issue mandate, in the absence of an affidavit of inability to pay costs, which includes the said attorneys.
A careful consideration of the terms of the Workmen’s Compensation Baw of Texas (Rev. St. 1925, art. 8306 et seq., as amended) has convinced us that we erred in our construction of the judgment herein, and that, if thе case last cited justified our action, the eminent judge who wrote the opinion therein failed to take note of the matters to which we now call attention.
We quote here from the statute:
“All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation, and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt tо assign the same shall be voidi * * *
“All fees of attorneys for representing claimants before the board under the provisions of this law shall be‘subject to the approvаl of the board. * * * - After the approval, as first above provided for, if the association be notified in writing of such claim or agreement for legal services, the same shall be a lien against any amount thereafter to be paid as compensation; provided, .that where the employee’s compensation is. payable by the association in periodical install-, ments the Board shall fix at the time of apT proval the proportion of each installment to be paid on account of said legal services. ,
■ - “For representing the interest of any claimant -in any manner carried from the -board into the courts,'it shall be lawful for the attоrney representing such interest -to contract with any- beneficiary under this law for an attorney’s fee for -such -representation, iibt to exceed one third of the amount recovered, such fee fpr services so. rendered to Jé'fixed *847 and allowed by the trial court in which such matter may be heard and determined.” Article 8306, §§ 3, 7c, 7d.
The pоrtion of said act last quoted has clearly lodged in the district court the discretion to fix a fee, limiting the right, however, to an amount not exceeding 'one-third of the recovery. Such a provision has been held constitutional. Yeiser v. Dysart,
The distinction is here noted under this statute between the right to contract for the services of an attorney and the right to fix a fee or assign to such an attorney an interest in the cause of action. The former may be legally done, but not the latter. Stated otherwisе, an employee may select and contract for the services of an attorney, but any provision inserted for a particular fee does not have thе binding force of an ordinary contract because such right is impliedly denied him by the provision which lodges in the district court the right to 'fix the fee which' is itself, however, limited as to thе amount. The quoted allegations from the petition alleged an invalid contract both as to the amount of the fee and as to the assignment of an undivided one-third оf all compensation received, but a valid one as to the employment of attorneys. Blair v. Village of Coleraine,
It has been ofttimes held that attorneys who had been granted a portion of the award, by the Industrial Accident Board were neither necessary nor proper parties in a suit to set aside such award. Texas Employers’ Insurance Association v. Mints (Tex. Civ. App.)
Construing the record in this case with the quoted provisions of the statute in mind,, we are of the opinion that it differentiates itself from cases arising under ordinary contracts of employment of attorneys where a present interest in a cause of action is assigned. One of the purposes of the Workmen’s Compensation Act undoubtedly was to protect the helpless and unwary from unconscionable contracts. Certain rights and benefits were there given to workmen not theretofore possessed under the la'w’, and a litigant asserting - rights thereunder' will, of course, have to accept its burdens as well as its benefits, one of which is the restriction upon the right to contract already mentioned. It seems to us that we would be forcеd to give effect to an invalid provision of the contract in order to here hold that the attorneys were asserting a present interest in the cause of action. . We will presume that the- trial court did not so construe it, and that he was attempting merely to fix a fee as compensation under the terms of said statute.
The case of Hughes-Buie Co. v. Mendoza (Tex. Civ. App.)
Our order, heretofore entered refusing to issue mandate is set aside, the( motion for rehearing Is granted, and the clerk of this court is directed to issue mandate without' payment of costs.