Maryland Casualty Co. v. Price

224 F. 271 | S.D.W. Va | 1915

KELLER, District Judge

[1] (after stating the facts as above). Of course, the question here is whether the declaration, taking all the facts stated as true, makes a prima facie case for recovery. It is ordinarily true that in a suit against attorneys for negligence it is necessary to allege and to prove that the negligence complained of is the proximate cituse of the loss complained of; in other words, to aver and prove, either that the loss would not have occurred, or that its amount would have been lessened, but for the negligence complained of.

It is true, however, that in Wharton on Negligence, 752, it is stated that when negligence has been shown, in. consequence of which judgment has gone against the client, it is not incumbent on the client to show that, but for the negligence, he could have succeeded in the action. The only case referred to in Wharton supporting this view is the case of Godefroy v. Jay, 7 Bingham, 413, in which no attention was paid to the case by the attorney, and judgment was obtained by default, which the client was compelled to pay, and the court held that it was for the attorney to show that his client was not damnified; by such negligence. This would seem to be precedent and some authority for the proposition that a declaration which avers such total failure to make any defense would be sufficient, without any allegation or averment of a just defense, and I believe it sufficient to sustain a judgment for nominal damages.

However, upon the principle that in any case of trespass on the case for negligence, cognizable in the courts of the United States, the amount in controversy is an essential element to give jurisdiction, I incline to the opinion that the declaration, must aver either a good defense to the entire action, or else aver that but for the negligence of defendants a less sum would have been recovered in the action. See the opinion of Judge Swing in Spangler v. Sellers (C. C.) 5 Fed. 893, 894.

[2] I am quite confident that when, as in the case at bar, there is an averment in the declaration of the fact that at the time of employing counsel the client had the option of settling the case for a comparatively small sum of money, and such fact was not communicated tb counsel, nor were the facts of the case at all communicated to such counsel, the plaintiff ought not to be permitted to make counsel responsible for its own default in failing to' settle the case on the favorable terms known to it alone; and therefore, where such facts arc averred in the declaration, they should be accompanied by an averment of good defense against the entire cause of action, or, at the least, that the amount for which the settlement could have been made was greater than the true legal liability upon fair and full trial. See Grayson v. Wilkinson, 13 Miss. (5 Smedes & M.) 268 and Benton v. Craig, 2 Mo. 198.

Demurrer sustained.