145 S.W.2d 134 | Mo. | 1940
Lead Opinion
This is an appeal from an order of the Circuit Court of Jackson County, Missouri, allowed appellants attorneys' fees in the sum of $3,500. The attorneys contended that the allowance was grossly inadequate and appealed. The history of the case leading to this controversy, as stated in appellants' brief, which we quote, omitting parts deemed unnecessary, is as follows:
". . . The respondent was the Superintendent of Insurance of the State of Missouri, having succeeded R.E. O'Malley to that office, the services in question being rendered during the tenure of O'Malley. The defendant, Manufacturing Lumbermen's Underwriters, was a reciprocal exchange doing business in the State of Missouri under the provisions of Secs. 5966 to 5977, R.S. Mo. 1929, governing reciprocals, and also doing business in numerous other states and in Canada. Rankin-Benedict Underwriting Company, which will be mentioned hereinafter, is a Missouri corporation and was the attorney-in-fact of said reciprocal until superseded by one Vincent Coates. Howell Jacobs, Kansas City lawyers, represented Coates, the substituted attorney-in-fact of said reciprocal and also certain subscribers or `members' thereof.
"R.E. O'Malley, the then Superintendent of Insurance, on November 12, 1936, filed a petition in the Circuit Court of Jackson County, Missouri, for an order to place him in charge of the property of Manufacturing Lumbermen's Underwriters, a reciprocal inter-insurance exchange, as agent and for such further transaction of business by said exchange would be hazardous to policyholders. This proceeding was authorized under the insurance liquidation and rehabilitation statutes of Missouri. [Secs. 5939 to 5959, incl., R.S. Mo. 1929, as Amended; Laws of Missouri, Extra Session, 1933-34, p. 65.] On the same day the circuit court entered an order authorizing the Superintendent forthwith to take charge of the exchange's property, enjoining it from further prosecution of its business. Pursuant to this order the Superintendent took charge of the reciprocal's assets consisting of cash, bonds, stock and accounts receivable in excess of two and one-fourth million dollars ($2,254,047.50), composed of the following items; cash, $313,542.77; bonds, $1,444,031.82; bank stock, *1107 $1,020; bank liquidation certificate, $2,902.30; deposits and accounts, $455,430.14. The liabilities for losses due from reinsurers was $37,119.65.
"While the Superintendent was in charge of the exchange and its assets under said order and before trial and hearing on the merits of the Superintendent's petition, and while the Circuit Court of Jackson County, Missouri, was exercising jurisdiction over the exchange and its vast properties, on December 1, 1936, a petition was filed in the United States District Court at Kansas City, Missouri, seeking to have Manufacturing Lumbermen's Underwriters adjudicated a bankrupt, and to have its assets removed to and liquidated in the bankruptcy court, thus ousting the Superintendent and the State Circuit Court. This proceeding purported to be a petition of said exchange for a voluntary adjudication of bankruptcy, and to be filed for the exchange of aforementioned Rankin-Benedict Underwriting Company, claiming to act as the exchange's attorney-in-fact. An order and judgment adjudicating said exchange a bankrupt was immediately entered exparte in the federal court and on the following day the referee in bankruptcy appointed a receiver for all of the exchange's assets, said receiver being one of the attorney-in-fact's officers. The situation on December 2, then, was that a federal court and a state court were each claiming jurisdiction over the exchange and its assets, and a federal court receiver and a statutory agent appointed by a state court had each been ordered to take charge of the assets. . . .
". . . The Superintendent at the time was represented in the state court proceeding by James P. Aylward, George V. Aylward and Terence M. O'Brien, hereinafter referred to as the Aylward firm. Upon their recommendation, the Superintendent authorized the employment of appellants, Ringolsky, Boatright Jacobs, for the special purpose of resisting the bankruptcy proceedings and enforcing and vindicating the Superintendent's right to the custody and control of the exchange and its assets. . . . There was no arrangement or agreement between appellants and the Superintendent as to the compensation appellants were to receive."
Appellants and the Aylward firm represented the Insurance Department in the Federal court in the bankruptcy matter. They contended that the alleged bankrupt company was not amenable to voluntary bankruptcy. A motion was filed to dismiss the proceedings and this motion was sustained. [See In re Manufacturing Lumbermen's Underwriters,
[1] At the outset we are confronted with a motion to dismiss this appeal, the theory of respondent being that the insurance code of the State is an exclusive code unto itself and does not authorize an appeal for a judgment or order allowing fees to attorneys. This is a new question and seems not to have been presented before. The Insurance Department appealed from such a judgment in the case of O'Malley v. Continental Life Insurance Company,
Another case where the Insurance Department appealed from a similar judgment was Robertson v. Missouri State Life Insurance Company, 136 S.W.2d 362, where the St. Louis Court of Appeals reversed the judgment of the lower court. Respondent refers us to Section 5945, R.S. 1929, as amended by Laws of 1933-34, Ex. Sess., page 67. This section allows an appeal to either the Insurance Department or a defendant company within five days after a court has entered a judgment on a petition of the Insurance Department seeking the liquidation of a company. It is contended that this section does not authorize any other appeal. This section, however, is not a limitation on the right of appeal, but grants the right to either the Insurance Department or a defendant company in a case where the right of appeal absent the statute would be uncertain. [O'Malley v. Continental Life Insurance Company,
Section 1018, R.S. 1929, Mo. Stat. Ann., p. 1286, provides: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction," etc. Section 5944, R.S. 1929, Mo. Stat. Ann., p. 4532, of the insurance code, prescribing proceedings under the code, contains the following provision: "The pleadings and proceedings, in so far as not otherwise regulated by this chapter, shall be as in other civil causes." That provision was quoted in Moss v. Kansas City Life Insurance Company,
The insurance code has been on our statute books for many years. The right of appeal has been exercised by the Insurance Department as well as by litigants deeming themselves aggrieved by any judgment in favor of the department. The Legislature has not, in view of this interpretation of the law, seen fit to expressly prohibit appeals. This continued acquiescence in that interpretation by the Insurance Department and also the State Legislature implies that the law has been correctly interpreted. We rule, therefore, that the right of appeal exists in cases of this nature and the motion to dismiss will be overruled.
[2] Respondents assert that the question of attorneys' fees is not triable de novo by this court. A number of cases are cited, as well as Section 5954, Laws 1933-34, Ex. Sess., page 70. That section authorizes the Superintendent of Insurance to employ legal counsel and a clerical force subject to the approval of the court as to the amount of compensation to be paid them. That section does not mention or even suggest what is to be done by an appellate court in case of an appeal from the allowance or disallowance of compensation for legal services. Neither do the cases cited by respondent rule the question. [State ex rel. v. Hall,
The case of Aetna Insurance Company v. O'Malley,
Many cases may be found where appellate courts, on appeals from the allowance of attorneys' fees, have considered the case denovo and either increased or decreased compensation allowed by the lower courts. [See notes in 7 C.J.S., pages 1088, 1089.] At page 1093, section 191-d, 7 C.J.S., we note the following: "Where there is a controversy as to an attorney's fee, the determination of the amount thereof is within the discretionary power of the trial court, or on appeal, of the appellate court." There are three recent Federal cases on this subject. In the case of Merchants' Manufacturers' Securities Co. v. Johnson,
[3] Respondent cites the case of Blackhurst v. Johnson,
"In determining the question of the reasonableness of the attorney fees, many elements are entitled to consideration — the character, ability, and experience of the attorneys, the amount involved, the time necessary to prepare for trial, the difficulties and intricacies of the propositions involved, and the results obtained, as well as other elements." *1111
In the case before us, as in that case, the facts are not in dispute. Now to the question of whether the allowance made by the trial court was grossly inadequate. Our answer to that question must be in the affirmative. The importance of the points of law with which appellants have to deal is reflected in the opinion of Judge OTIS, reported in
Then came the second bankruptcy case wherein a number of creditors attempted to have the company adjudged an involuntary bankrupt. That case was presented to the Honorable Judge REEVES. Appellants again were required to do a great deal of research work because the question was presented to the Federal court from an entirely different angle. Able and skilled counsel represented parties adverse to the Insurance Department. It is conceded that appellants are lawyers of high standing. They were employed especially for this case because of their ability to handle this kind of litigation. There is evidence that the overhead expense of appellants' firm amounted to over $1,000 per month. The opinion of Judge OTIS and the briefs filed by appellants in that case disclose that appellants presented the matter to the Federal court in a careful, skillful and thorough manner. The questions of law required the services of industrious lawyers of high standing and skill. The evidence in the record on the value of services, as given by a number of able lawyers, was $50,000 for both the Aylward firm and the appellants. In that sum was included the labor of prosecuting the case to final determination in the Circuit Court of Appeals. That would mean that the value of the services of appellants was placed at about $25,000, for the record justifies the assertion that they performed at least one-half of the labor. The rule is, that evidence of lawyers as to the value *1112
of legal services is not binding on the courts. Blackhurst v. Johnson,
The judgment of the trial court is, therefore, reversed, with directions to enter an order and judgment in favor of the appellants named in the sum of $15,000, which is to be paid out of the assets of the company is liquidation. Cooley andBohling, CC., concur.
Addendum
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.