150 Minn. 103 | Minn. | 1921
while employed as a freight conductor in the state of Wyoming by the defendant railroad company the plaintiff, Arthur Miner, fell from his train and was severely injured. About two weeks later one Benon, representing the intervener, George C. Stthes, obtained from Miner a signed statement, in which he said he was going over his train from one car of lumber to;,another and went down between the cars, and that there were no grab irons except at the bottom of the car. At the same time Miner signed a contract employing Stthes as his attorney, to bring an action for damages against the railroad company, agreeing to pay him a sum equal to one-third of the amount received either by suit or settlement. Benon immediately telephoned to Stthes, informing him of the retainer and of the facts of the case, and the latter at once commenced an action, sending a copy of the complaint to Miner with a letter asking him to examine it and inclosing a cheek for $100 as a personal loan. R. wrote that he could not make out'from what Benon had said whether plaintiff had fallen from the end of a gondola car or from the end of the ear next to it, and asked him to tell him in his own way how he fell. R. added that if necessary he would amend the complaint to set up the facts correctly. To this Miner replied that there had been a mistake as the letter was “not like it should be at all,” and returned the check and' asked Stthes not to do anything more until he notified him. About two weeks latex Benon obtained another statement from Miner, in which he said he was on a bad order box car, which was loaded on a Hat car and was going down the side of the box car; that the grab iron was driven into the side of the car, and in making a step he swung around the end of the car and fell in between the cars. At the same time he either gave or exhibited to Benon a letter from a fellow employe, named Fee, stating that Fee had checked the train and found the grab irons bent against the body of the “penalty defects” car body.
In the original complaint it was alleged that plaintiff fell while climbing upon the end of a gondola car, because the top grab- iron on the car was missing. In the amended complaint, served after Miner made his second statement, it was alleged that he fell while climbing down the side of a box car, because the two lowest hand-holds in the ladder on the
On discovering these facts Stthes obtained leave to intervene in the action and filed a complaint therein setting up his contract of employment, the bringing of the action in pursuance thereof, the settlement made by Miner, his failure to pay hijn for his services, and claimed a lien upon the cause of action by virtue of chapter 98, p. 121, Laws 1917, for one-third of the sum Miner had received, and demanded judgment for that amount against the railroad company and also against John Barton Payne as agent of the President under the Transportation Act of February 28, 1920. Though the latter was named by the intervener as a defendant, so far as the record shows no order of substitution had been or ever was entered by the court. The defendants answered separately, but by the same attorneys. Among other defenses both alleged that Miner fell from a gondola car and that in that respect his original complaint was true; that his amended complaint was prepared by intervener after he learned that there was another car in the train which had a defective ladder, and that the amendment was made with full knowledge that the accident did not occur on that account. The agent of the President also alleged that the intervener had not been employed to sue and had not sued him. At the trial the principal issue was whether the intervener had caused plaintiff’s complaint to be amended with knowledge that the cause of action, finally pleaded was fabricated. There was a sharp conflict in the evidence bearing on this issue. The trial court decided it in favor of the intervener, awarding him the amount claimed, together with certain expenditures made for plaintiff’s benefit and the President’s agent has appealed from an order denying his motion for a new trial.
The order appealed from is affirmed and the cause remanded to the district court with directions to entertain a motion for the substitution of the agent of the President as defendant in the action.