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CAPOZI v. HEARST PUBLISHING COMPANY (11/10/52)

November 10, 1952

CAPOZI
v.
HEARST PUBLISHING COMPANY, INC., APPELLANT



Appeal, No. 206, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 631, in case of Vincent A. Capozi v. Hearst Publishing Company, Inc. and Jacob Wilder. Judgment reversed.

COUNSEL

Arthur M. Grossman and Leonard Mendelson, for appellants.

Charles J. Margiotti, with him Harry Savage and Margiotti & Casey, for appellee.

Before Stern, Stearne, Jones, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 371 Pa. Page 505]

OPINION BY MR. JUSTICE CHIDSEY

Plaintiff, Vincent A. Capozi, brought an action in trespass against Hearst Publishing Company, Inc., and Jacob Wilder to recover damages for personal injuries resulting from the latter's negligent driving of a truck. The Hearst Publishing Company filed an answer denying any agency relationship between itself and the individual defendant. A jury rendered a verdict of $60,000 against both defendants. The defendants together filed motion for new trial and defendant, Hearst Publishing Company, separately filed motion for judgment in its favor non obstante veredicto.

Prior to argument on these motions, defendants petitioned for and the court issued a rule upon plaintiff to show cause why he should not carry out the terms of an alleged agreement of settlement made by counsel

[ 371 Pa. Page 506]

    for the parties prior to the verdict, or suffer a decree against him for $22,500 (the claimed amount of settlement) and record costs in satisfaction of his cause of action. The plaintiff filed an answer to this petition and rule, and depositions were taken. The lower court in its opinion dismissing the motions for new trial and judgment non obstante veredicto, with reference to the rule issued said that "... the case was apparently settled as far as counsel was concerned, but there is no evidence that the plaintiff agreed to anything his counsel said, and the plaintiff had a contract with his attorney whereby the case could not be settled without the permission of the plaintiff. Therefore, we believe this case was properly submitted to the jury,...". As it appeared that the court intended to and in effect did discharge the rule, the parties stipulated that the appeal to this Court should be argued and decided as if an order had been entered expressly discharging the rule. The dismissal of the defendants' motion for new trial was conditioned upon remittitur being filed for all of the verdict in excess of $40,000. This remittitur was filed and judgment was entered against both defendants in the amount of $40,000. On this appeal therefrom defendants make various contentions.

We shall first consider the claim by both defendants that the alleged settlement agreement was binding upon the plaintiff. Under the rule issued, depositions were taken of the plaintiff, counsel for plaintiff, counsel for the defendants and the representative of defendants' insurance carrier, and the contract between plaintiff and his attorneys was introduced which contained a provision "Said attorneys shall have full power to settle or compromise said suit or suits as may appear to them to my best interest, but, in no event, for a sum less than that expressly approved by

[ 371 Pa. Page 507]

    me;...". Negotiations for settlement of the case had been carried on for several weeks, prior to and during the course of the trial. They appeared to have culminated in what occurred in the trial judge's chambers when counsel for both parties met there with the trial judge. As indicated in the finding contained in the lower court's opinion, above quoted, there appeared to have been an agreement between counsel for settlement of the case at $22,500, and the real question at issue was whether plaintiff's counsel were authorized to agree to a settlement in such amount. Appellants make no claim of ratification by plaintiff of his attorneys' act as in Yarnall v. Yorkshire Worsted Mills, 370 Pa. 93, 87 A.2d 192.

In their brief appellants state, "We do not question the well established principle that an attorney's mere status as attorney in the case does not vest him with authority to settle his client's case without his client's consent. We submit, however, that there is sufficient evidence in the record to justify the conclusion that ...


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