109 Ky. 573 | Ky. Ct. App. | 1901
Opinion op the court by
Affirming.
One T. P. Whitlow sustained personal injury on the Louisville & Nashville Railroad, in Tennessee, prior to November, 1889, he being then a minor, and in the employ of the railroad company. From this injury he died. His father, Wyatt Whitlow, who claimed to inherit as sole heir at law of the deceased son, and who qualified as his administrator in Kentucky, contracted with B. F. Proctor, an attorney at law, to take charge of and prosecute the claim against the railroad company for damages resulting from the injury and death of the son. This contract, which w^s dated November 20, 1889, provided that Proctor was to have a sum equal' to one-third of the recovery if the claim was compromised, or if suit was instituted and successfully prosecuted in the circuit court of Warren county, Ky.; but if suit on the claim were required- to be and was instituted in Tennessee, or if in Kentucky and appealed, then the attorney was to receive a sum equal to one-half of the recovery; ana all compensation was contingent upon success. The contract further provided; “In event of recovery, the necessary expenses of said Proctor incurred in this behalf are to be first paid, and his fee is to be estimated on the balance, being equal
Under section GOG, subsection 2, Civil Code Practice, it is provided that “no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done, or omitted to be done by, one who is . . . dead when the testimony is offered to be given,” etc. It is contended that inasmuch as Proctor was not a party to this litigation, the provision of the Code above did not apply. We are of the opinion that the court below ruled properly in rejecting this testimony. This court, in an opinion delivered by Chief Justice Pryor in Hopkins’ Adm’r v. Faeber, 86 Ky., 223, (5 S. W., 749), wherein this question was involved, said: “The. fact that the personal representative or the trustee may have an interest in the recovery does not affect the question involved, or make those interested with him competent witnesses. ... In testifying in this ease the witness was testifying for herself against the estate of the decedent, and her testimony controlled the extent of the recovery.” The same rule of construction is announced in the case of Apperson’s Ex’x v. Bank (Ky.), (10 S. W., 801). The court, in considering the section, said: “While we do not think it was intended to limit the application of that section to the testimony of a person a party to, and directly interested in, the result of a suit with a representative of one who is dead; yet, to render such testimony incompetent,
This leaves, then, but one question to be determined on this appeal, and that is whether the part of the contract quoted above authorized the expenditure as “expenses” to the assisting attorneys. Unless the words, “the necessary expenses of said Proctor incurred in this behalf,” include such items, then they are not provided for in the contract. It will be noticed that the decedent was contracting for such legal services as were probably necessary to recover on his claim against the railroad company, and it must be admitted that he madie a liberal provision in this respect. The contract does not intimate that additional counsel would be required, but anticipates other expenses, for traveling and such items, as the contract contemplates that the action might have to be brought in Tennessee, or, if instituted in Kentucky, might have to be followed or taken to the court of appeals. The fact that Wyatt Whitlow was- present at the trial when Rodes participated, and made no objection to his so acting, is not a sufficient circumstance from which to draw a conclusion that he knew h'e was to pay for Rodes’ services. It is just as reasonable to presume that he expected Proctor to furnish all legal services needed under his contract,