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court or prison official, sheriff, physician, hospital attache, or any person, pay or offer to pay, directly or indirectly, to any attorney at law, or receive or offer to receive from any such person, or from any claimant or litigant, anything of value as a consideration for the placing, or haying placed in the hands of such attorney at law, any business requiring services from said attorney at law.
(3) No person, whether admitted to the bar or otherwise, shall solicit or seek in any manner, directly or indirectly, from any person or persons, or corporation, any employment of any kind, for himself, or for others, to be performed in reference to, or in connection with the making, presenting or investigation of any alleged claim, debt, cause of action or demand, of any nature, or in connection with, or in relation to any real or alleged or possible defense of any sort, or in reference to, or in connection with the making presentment, investigation or prosecution of any action or proceeding of any nature, which is pending, or may be the subject of controversy in any court, no matter where situated, or in connection with the making or investigation or assertion of any defense of any such action, or proceeding, which is pending, or may be the subject of controversy in any court, no matter where situated.
I then proposed, in directing attention to the other phase of “ambulance chasing," as follows:
(4) Except where the claimant or releasor is represented by an attor. ney at law, of his own selection, duly admitted to practice, and then and there acting for him, no person, whether admitted to the bar, or otherwise, shall make or conclude, directly or indirectly, any settlement of any alleged claim for personal injuries with any claimant, or possible claimant, or take or receive, directly or indirectly, any release or releases of any such claim or covenant not to sue, or any other document or instrument, agreement or other thing, designed to settle or release such claim, until the exact terms of the proposed settlement shall first be approved by some court of record within the territorial jurisdiction of which the claimant, or possible claimant, shall reside, after, and upon a full understanding of the facts by said court, and the consent of the claimant given in open court, or to some attorney appointed by the court to interview such claimant or possible claimant, for the court, when the claimant is unable to attend in open court, and then only upon written order duly made upon such consent in open court, or the report of such attorney, in writing, to the court.
(5) The person, persons, or corporation, petitioning or moving the said court for the appointment of an attorney under and pursuant to the provisions of sub-section 4 hereof, shall not be entitled to suggest to the court who shall be appointed, and shall pay into said court such sum, not less than two dollars, nor more than twenty-five dollars, as the court shall order, to be paid over to such attorney as the court shall appoint, as his compensation for such services.
(6) Any settlement made, or release or other document taken, contrary to the provisions of this act, shall not be valid or binding on the claimant or releasor, and shall not be a bar to any action brought by him to recover his damages in the courts, but on the trial of such action, proof may be offered showing the amount actually paid to the claimant, but not that the claim was released or attempted to be released, and the releasee shall be given credit for the amount so paid in the assessment of any damages assessed in favor of the claimant, if anything is so assessed.
(7) In civil actions for damages, caused by personal injuries, no statement made, or writing signed by, or release, or other document obtained
from the injured person, prior to the actual commencement of an action, shall be used in evidence against the party making or signing the same, unless such evidence would be admissible as part of the res gestae, or except it be obtained pursuant to and in accordance with this act. Proof may, however, be received to show the amount of money paid to a claimant on account of his injuries, and credit shall be given therefor.
(8) Reasonable provisions as to penalties.
Section 1 of my proposed bill related to attorneys at law, whether admitted in this State or elsewhere. I also broadened the scope of the other bill by substituting in place of the words "claim for damages of any nature whatever," the words “alleged claim, debt, cause of action or demand of any nature whatsoever, or any defense or any matter or thing whatsoever, upon which said attorney at law is expected to render professional services." This was to surely make it cover a field broader than the personal injury field.
I tried to make Section 2 of the alleged reform bill more comprehensive by having it relate to outside attorneys, as well as those admitted in this State, and limited the application of the section in another way, so that it would be proper for an attorney to forward business to another and still permit a division of the fee between them.
My proposed Section 3 was aimed against the solicitation of law business, whether done by lawyers or by others. It was aimed at local and foreign lawyers, local and foreign solicitors, trust companies, claim adjusters, runners, go-betweens, and all classes, local or foreign. That section is alone sufficient to wipe out all solicitation of law business by anyone.
I suggested this in response to the general principle that champerty and barratry are wrong. That it is wrong to foment and protract litigation. That it is contrary to public policy to excite and stir up suits and quarrels. The object of this section was to prevent the stirring up of litigation. Anything that keeps alive strife, or foments it, and keeps up contention or stirs up contention and strife is, according to the common law, a perversion of the remedial process of the law, and is regarded an an engine of oppression.
The first three sections of my proposed bill were intended to wipe out all forms of champerty, barratry and maintenance, and to make it a crime for any person to solicit law business of any kind, within the State of Wisconsin, whether that solicitation was done by attorneys or by anyone else, whether done by persons living within the State, or living without the State, and whether done directly or indirectly by any of them. It was suggested upon the theory that if it is wrong for one to keep alive strife, or foment strife and contention, or to protract strife, or to excite and stir up suits and quarrels or litigation, it is wrong for anyone else to do that same act. The proposition may be far reaching, but I meant it should be. It could work no injustice to anyone for the legislation to be so strong and thoroughgoing that it would works its own enforcement.
Sections 4, 5, 6 and 7 of my proposed bill were intended to wipe out the evils of ambulance chasing as practiced in behalf of defendants.
These Sections permit a settlement, but it must be by aid of claimant's attorney, or under the eye of the court, applying to some extent the same principle, excepting where claimant has an attorney, as applies now in cases where persons who are injured, are under twenty-one years of age. There is just as much reason and necessity for providing this protection here, in view of common abuses, as there is for applying it to a person eighteen or nineteen years of age, who is quite as capable of acting and speaking for himself in a matter of this kind, as the average layman of mature years. This may be one of the most important transactions of life, yet the injured is obliged, under the present practice, to act as his own lawyer and be his own advisor, while dealing with an adversary, who is represented by skilled and trained and highly paid physicians and claim agents, whose practices have long been, and still are, a travesty upon justice.
Sections 6 and 7 provide that if any such settlement is made, contrary to the provisions of the act, the defendant is entitled to credit for the amount paid, and simply makes a release invalid to the extent that it is unjust as found by the court.
Every individual and interest is left full protection for his just claims and all his rights and just defenses. The proposition I make is simply to give each the protecting arm of the court, to which all must finally look for justice. The plan is simply to give assurance of a fair deal, in matters where, without the protection of the court or counsel, unequal adversaries have met and injustices have been practiced upon the weak by the strong, until it is a shame on the law and the law-makers of the land.
Some objection was raised to my bill because of the so-called "red tape" of effecting settlements. The answer is, common practice makes it necessary. Justice cannot be sacrificed for the sake of convenience. To offset this inconvenience, however, the proposed act permitted settlements in three ways. First, With claimant's attorney. Second, Under the eye of the court. Third, Otherwise, at the risk of the debtor. Under the third class the only penalty that need apply is the invalidity of the settlement, so far as it is found unjust as to amount, when attacked in the courts. The true measure of damages should control and not the standard of the skillful claim agent. Fair settlements would be stimulated, unfair ones overturned, and justice would triumphantly rule.
Trust COMPANIES AND THE PRACTICE OF LAW.—The practices of certain Trust Companies seem to Mr. Corrigan as very germane to the subject of “Solicitation.” He says:
Capitalists, some of whom are lawyers, have organized throughout the United States, corporations called trust companies, the word “trust” usually preceded by an adjective such as “Guaranty," "Security," "Reliable," "Fidelity," or other attractive and deceptive names. Their evident purpose is to create such confidence in the minds of the people that they will entrust, to these corporations with these high sounding titles, their savings, their legal business, the making of their wills, the disposition of their property, and the caring for their widows and orphans. The gentlemen engaged in this kind of business would be shocked if they were accused as individuals, of advertising for clients, but is that not what they are doing when they lend their names to be used in advertisements as directors or officers? Besides this, some of these corporations openly advertise for, and solicit law business.
When the members of the public, in response to these solicitations, visit trust company offices, whom do they meet, and who are they turned over to? They are turned over to lawyers.
A position of trust and confidence is a sacred one, and the duties imposed, if properly done, are never performed where the position is solicited or is taken for profit alone. This is true whether the lawyer is an individual or is an "incorporated" one.
I predict that the people in this country will not long permit trust companies to sell securities to their clients, when the purchasers are led by a
species of fraud to believe that the vendor is a fiduciary. The fact is, that these vendors now deal with their customers at arm's length and nothing more than the ordinary relation of vendor and vendee is permitted by them to exist.
These species of deception have been very profitable. There are now in New York City more than thirty trust companies so-called, all closely allied, many with interlocking directorates, that have, in the last fifteen or twenty years, made profits that are astounding, and which never could, and never should be made by fiduciaries, as lawyers understand that word. For example, the Brooklyn Trust Company is paying twenty-five per cent dividends on its stock, annually. The Central Trust Company of New York, fifty per cent; the Guaranty Trust Company of New York, twenty-eight per cent; the Metropolitan Trust Company, twenty-four per cent; United States Trust Company of New York, fifty per cent, and the United States Mortgage and Trust Company, twenty-four per cent. Many others range above twenty per cent, and but few fall below fifteen per cent. These figures are taken from "Trust Companies of the United States," a book published by the United States Mortgage & Trust Company of New York in the year 1915, so it stands as an admission against interest, and is abundant evidence of abundant "interest” in more ways than one.
As a result of their activities they have succeeded in having themselves named as trustees in a large majority of mortgages in which the savings of the whole people of the United States are involved. The powers entrusted to them under these mortgages give them a firm hold on the savings of our people, and I assert that the trust companies of New York, by reason of the facts to which I have called attention, control more capital than any other combination of men or institutions in the United States, but as is to be expected from men who come to occupy positions as trus. tees, as a result of solicitation, they have performed their duties questionably and to their own grossly large financial profit.
Periodically the trust companies of New York and their officers and directors have organized themselves into a self-constituted reorganization committee and have in turn solicited through advertisements and threats the deposit with themselves of bonds, held by innocent clients and investors throughout the United States. They have forced the small owner of bonds to place them in their hands for collection under contracts that are worse than those taken by pawnbrokers. Having obtained control of the bonds secured under such mortgages, they envolve a so-called plan of reorganization, the effect of which is to give them large compensation for themselves and their attorneys, and to compel other small investors to either employ them or submit themselves to the tender mercies of a foreclosure action in the Federal courts.
I respectfully submit that all trust companies and all similar organizations should be driven out of the law business, and their business otherwise regulated so as to be held strictly within proper lines.
TENDER WITH REQUEST FOR CHANGE IN THE CASE OF COMMON CARRIERS.-It is a well settled principle that a tender of money must be in the exact amount; that the offer of a larger sum with a request for change is not a good tender and this rule has been applied to common carriers as well as others, though in a California case it
was held that a street car company which had been accustomed to make change for passengers could not refuse to do so when a passenger offered a five-dollar gold piece for a fare of five cents. But a late case in Mississippi goes far beyond this. A passenger at Gulfport in that State tendered to the ticket agent a $100 bill and asked for a ticket whose price was two dollars and one cent. The agent told him he would have to pay his fare.on the train. He went aboard and when he tendered the bill to the conductor was told he would have to pay 4 cents a mile instead of 31/2 cents which would have been the rate had he bought a ticket at the station. The passenger refused to pay the higher rate; was ejected from the train and sued the railroad for damages. The trial court held as a matter of law that the tender at the station was not a legal one and gave judgment for the defendant. The Supreme Court rules the question of the reasonableness of the tender was one of fact for the jury and it lays it down that a passenger need not tender the exact fare, but, if he tenders a reasonable sum, the carrier must accept it and furnish change; what is a reasonablé sum depending largely upon whether the carrier is a steam railroad or a street railway, and upon the ease or difficulty in handling passengers in each locality, Says the Court:
"We do not undertake to lay down any rule defining what is and what is not reasonable tender in all cases. This is a mixed question of fact and law to be determined in each case, taking into account always the size of the city, town or village, where the passage is demanded, the volume of business done and the facilities for making change. We do say, however, that in this particular case the court could not, as a matter of law, declare the $100 bill an unreasonable amount in a city life Gulfport. There is no question of the good faith of the appellant, and surely we have fallen on uncertain times if a white gentleman with a pocket full of $100 bills cannot buy first-class passage on a train operated by a common carrier doing both an interstate and intrastate business without paying a premium so to do, especially when he has transacted all business on hand and is destined for the attractive and cosmopolitan city of New Orleans. Such conduct on the part of the railway company comes near violating the constitutional guaranty accorded every citizen of the pursuit of happiness.'
But Smith, C. J., dissents, saying: “The rule which I understand my associates to announce, and with which I am in accord relative to the duty of a ticket agent of a common carrier in the making of change when the amount tendered him exceeds the amount of the fare demanded, is that laid down in 6 Cyc. p. 547, that: 'While the tender of more than the amount, with the requirement of making the change may perhaps, under the ordinary usages of such business, be sufficient, yet the person making the tender cannot expect the agent or servant of the carrier to be prepared to make change in any amount, no matter how large, and there must be a reasonable approximation of the amount tendered to the fare.' This rule seems to me to require an affirmance of the judgment of the court below, for I think that it can be said,
2 Jones v. R. Co., 68 S. 924.