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![MISSING IMAGE](http://ufdcimages.uflib.ufl.edu/AA/00/00/85/43/00025/decisionnoinmatt61mixe_0001thm.jpg "Decision no. ... in the matter of fixing reasonable fees for attorneys or agents under the authority of Section 9 of the "Settlement of War Claims Act of 1928."") Material Information
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UNIV. OF FL L HA:...: L "I:. I.., crli IA tS U.s. DEPOfTORY .' .IP^..:* * .~.I. " I-:- UU .q * iM .. , Ai: I "* *, *.... . . ...... .. *.. ..... PF l ** * H.: :4: ,;I S .. T .. *. .* .r,,: .... .. 1 I: .A A h. ::..' : . tX *^jh'xt; f THE UNDER CLAIMS STATES DECISION THE COMMISSIONER COMMISSION AND GERMANY NO. IN THE MATTER OF FIXING AGENTS THE FEE FOR AUTHORITY WAR CLAIMS ATTORNEYS SECTION ACT 9 OF 1928" d I. -, I. % *iI jI * I H. I I. i ?~ I:. k ; -.A. (n.:. i.: DOCKET NOS. 596, 597, AND Elisabeth Mounsey, Sarah Jane Lznd Hornberger, Individually and as Administrator of the Estate of COarles Henry Lund, Deceased, Claimants Robert P. Burkhalter, Attorney CHANDLER P American .ANDERSON Commissioner AMERICAN MIXED UNITED REASONABLE " SETTLEMENT ~ 5L3 ir~:11"~:;~p~ MIXED CLAIMS COMMISSION UNITED STATES AND GERMANY Established in pursuance of the Agreement between the United States and Germany of August 10, 1922 CHANDLER P ANDERSON American Commissioner (II) -*V? r Zrl I I:"'' THE AMERICAN MIXED CLAIMS COMMISSIONER COMMISSION UNITED STATES AND GERMANY DECISION NO. 6 IN THE MATTER OF FIXING REASONABLE FEES FOR ATTORNEYS OR AGENTS UNDER THE AUTHORITY SECTION 9 OF THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 " DOCKET NOS. , 597, AND 598 th Mounsey, Sarah Jane Lund Hornberger, Individually and as Adcministrat of the Esta Ch~wrle8 Henry Lund, Deceased, Claimants Robert . Burkhalter, Attorney The Commi above ssioner named written claimants requests have that duly filed with American a reasonable paid each them their attorney Robert Burkhalter, Chicago, Illinoi rendered by him as compensation on behalf of and for whatever with services have the authority of said been claim- ants, services being of the character described in the provisions of Section 9 of the "Settlement of War Claims Act of 1928." -~~~~~ Cr - Elizab mi r I r II I r 394 information has been brought to the attention of the claimants, who have each filed an affidavit in reply, a copy of which affidavits has been transmitted to the attorney. The awards in these claim were rendered by Parker, Umpire, on certificates disagreement N Docket No. 596, an award was rendered Elizabeth Mounsey $7,500.00, national on Ma with in Commissioners. ,rch 5, 1925, .terest on behalf thereon rate of five per cent per annum from November 1, 1923, to the date of payment, which amount represents damages ant on account of the death of her father suffered by the claim- , William Mounsey, caused by the sinking on May , 1915 of the team " Lusitania ", by 4erman submarine. Docket No. an award was rendered January 14, 1925, on behalf of Sarah Jane Lund Hornberger, indi- vidually, for $5,000.00, with interest thereon rate cent annum from November , 1923 date payment, which amount represents damages personal injuries suffered her through sinking on May 1915 steamship "Lusi- tania " , and for the further sum of $2 with interest thereon at the rate of five per cent per annum from May 7, 1915, to the date of payment, which amount represents value personal property belonging to her, which was lost through the submarine attack. Docket No. 598, an award was rendered on January 1925 on be- half of the Estate Charles Henry Lund Deceased $341.75, with interest thereon at the rate of five cent annum from May 7, 1915, the date of payment, which amount represents value of personal property belonging to the deceased, through the sinking on May 7, 1915, of the steamship which "Lu was lost itania " Sarah Jane Lund Hornberger i ister of Elizabeth Mounsey and the widow (since life through the remarried) < inking of the Charles Henry Lund, who lost his " Lusitania " 7 rllE, n nlnl" vvr :n mC~: n~ nn nmn nrl ,,,~,,, 1 ,, I.I dent's sons and daughters was also dismissed, except as to Elizabeth Mounsey, because show their dependence evidence on their presented on their father. The claim in which an award was rendered on behalf Sarah Jane Lund Hornberger (Docket 597) own personal injuries and her own personal property wa filed in her own name individually. The claim in which an award was rendered on behalf of the Estate Charles Henry Lund (Docket 598) was filed name of Sarah Jane Lund Hornberger for damage suffered by her as the widow of Charles Henry Lund and also in the name of the Estate of Charles Henry Lund for the loss of the decedent' personal prop- erty, but no award was made on behalf of the widow. this attorney is thirty-five per cent of the net amount received by the claimants from the Treas- ury Department in payment their respective awards after ducting the costs and expenses incurred in the preparation and pros- ecution these following claims. amounts The from claimants have respectively Department received Elizabeth Mounsey, $6,145.50 property; $9,173.80; for personal Sarah Jane Hornberger, for the loss of and Sarah Jane Lund Hornberger, Administratrix Estate of Charles Henry Lund $570.14. The disbursements preparation and made this attorney prosecution in connection above claim with before Commission are estimated by him to be $1,118.79. In computing the amounts due him jointly by these claimants disbursement attorney has deducted from the d bursements the item chargeable solely to Sarah Jane Lund Hornberger, amounting to $213.00, leav- ing a total net amount of disbursements properly chargeable jointly tn Snrn h .TaJn Tindn H nrn-Pnhrrn' anI rtt l7Ql;7h0fth Tniino'r nf _KQnA! '7Q 395 behalf failed The amount of compensation asked Treasury Lund $477.92 injuries and individually, Deceased personal of the 396 Deceased, $199.55, expenses Estate apparently being included in against Mrs. Hornberger The au Elizabeth entered surviving thority Mounsey into this individually attorney in Docket on February children William No. 1916 Moi claimant, according to the terms of for the claim on behalf of the the amount of expenses charged y. act on behalf of the claimant 596 is contained in a contract between this attorney and the unsey, deceased, including this which this attorney was author- ized in their names and Mounsey, deceased, for and on behalf of the Estate of William to prosecute a certain claim against the Cunard Steamship Company, other persons, including the German damages sustained by us because of Government, injuries received who by c may our late be liable father, said William Mounsey, deceased from which died on or about the 7th day of May, A. D. 1915, at or about the hour of two o'clock P ., said injuries having been received by sinking of the Lusitania pany, Ltd., sailing on the the said William Mounsey, a steamship owned high seas, deceased, Cunard at a point about ten because of Steamship Corn- miles from the shores of Ireland on said date. The contract further provided that We, and each of us, hereby agree that the said attorney shal have and retain one-half of all the proceeds of any amount that may be recovered by us, and each of us, or either of us, against the Cunard Steamship Company, Ltd., or any other individual after deducting the costs of suit, which we agree to advance. We, and each of us, also hereby agree that the said attorneys shall have and retain thirty-five percent and each of us, or either of us, of the proceeds as proceeds of of any amount received by us, our said claim, or the claim of each of us against the German government in case the said German government pays said claim, or any portion of said claim. This attorney likewise received from James F hop, Administra- tor of the Estate of William Mounsey, Deceased, a power of attorney nr~BA~ M i : n.tj?.. rj. attorney a power likewise received attorney dated from Sarah December Jane Lund Hornberger , 1922, authorized to prosecute her individual claim against The authority this attorney on behalf which was t Germany. claimant Sarah Jane Lund Hornberger as the widow of Charles Henry Lund and also on behalf of the Estate Charles Henry Lund, deceased, in Docket No. 598, i S8, 1916, between th which tioned. differs slightly this contained in a contract entered into on February attorney in form contract this and Sarah Lund from claimant two (now contracts authorized Hornberger) above men- attorney- in my name and in the name of the estate of the Charles Lund , deceased, to prosecute a certain claim against the Cunard Steamship Company, the German Government and all other persons who may be liable in damages for injuries received the said Charles Lund deceased, * the death of said Charles Lund having been ocensioned by sinkin of the steamship Lusitania. In this contract it was provided that the attorney- shall have and estate of retain the said one-half Charles Lund an: sum v suil recovered t or claim made i or by against the said Cunard Steamship Company, Ltd and thirty-five per cent of money received by me, or by the estate of said Charles Lund of any sum deceased any claim presented against the German government u case either the Cunard Steamship Company, Ltd., or the German government pays for said claim -after deducting al the costs of suit, which I agree to advance. The attorney likewise received from Sarah Jane Lund Hornberger a power attorney dated December in which was authorized to prosecute her claim as widow of Charles Henry Lund and on behalf of the Lund Estate. The attorney states that he has not included in the a mounts herein requested as fees any sum as compensation services performed by him in suits filed on behalf of these claimants against the Cunard v-fl 1 ri nm - Il -- -~1 . - n n rb fl *% n n w~ ~ Ct W' rv *- r r a V. fl .NCnflfl fl fl a flrr n nf rf l*f .nf 397 si r *.qj. .. *' *' *- **-s *' '~~-~~~-~- --~~~-~-~ Thi L:*n n m n L~ r n I 'nrvr n n n rr I ru r\r r ril n S i'' . 398 agreements, contingent upon recovery from the Steamship Company ".3 .1 .9j H" which under eluded was not obtained. consideration. reimbursed the any amount sums The of These rulings attorney also disbursements incurred on account likewise apply states for It of that he which he the suits to the has not asks t, against case i n- o be Cunard Steamship Company, Ltd. The torney they b claimant herein >ase grounds thei (1) its these under the r objection That perform alleged United him, States in presenting cases terms admit and their conditions amounts fees requested an extraordinarily that Government data "the and request entire the si d by employment above requested him large matter ?rvice the S forth, him excessive amount was render handled ed were Commission "; at- and on two because work by merely and That it was contrary to the provisions of the services agreements and to the intention claimants that with reference claim before this Commission, the expenses should be paid by the claimants in addition to the contingent fee. connection with this latter objection, attorney alleges his affidavits that , in order to clarify the understanding relating to the net fees to be paid to him, he held conferences in December, 1922, with some these claimant including Sarah Jane Lund Horn- berger, Elizabeth Mounsey, and their brother, William E. Mounsey, and on December 1922 wrote letters Sarah Jane Lund Hornberger and William Mounsey, individually, which confirmed his conversation with them and stated that it was under- stood that his services agreement were interpreted mean that the fee of thirty-five per cent for his services in connection with the prosecution of these to be calculated upon claim against the German the net proceeds of the claim Government was ; after deducting 41 nnrvck n n A nrpnti cn ,\ ','ncn' + n + ; n. n~j. tnflUI'. i U* I T..)t *Sr **5Y *.** *J Ir i* *tr* fl *** *** **~** ** nf czidl j 1 nn~ Y~bn~nnllC rnn '"''I i: r.:u ments, it will be noted that the agreements with the surviving chil- dren (Docket (Docket No. No. 597) attorney was tc 596) did: Sbe and with contain reimbursed Mrs. any for h Hornberger mention is expenses individually fact that in prosecuting these claim against the German Government , whereas, in the same agreements provision which Ltd might of the was made recovered J for the deduction from from Cunard Steamship "costs of suit" which the claimants agreed my amount Company, to advance. It should also be noted, in this connection that services agree- ment b Charles did j " cost between Henry providee of suit" this attorney Lund and and on behalf payment in connection by with Mrs.f of hi P of hi the [ the Hornberger estate claimant prosecution widow (Docket No. advance of the clair 598) ' the n of Lund' widow and estate against the German Government, as well as against the Cunard Steamship Company, Ltd. The claimant disclaim any recollection having discussed agreed to any amplification of the contract." pointed Administrative and as held and American Jurisdictional him in his prevlou Commissioner Decision decision on September 2! in similar cases general 3, 1928, (Deci- sions Nos. , 35, , 53 , 58 and where claimant is entirely competent to look after hi own interests in mak- a fee agreement referred with following attorney, extract from within Report of the group Senate Committee the Senate: on Finance recommending this legislation It is expected, howe that it will not be necessary to alter amounts fixed by contract with large corporations and others fully capable of protecting their own interests. such cases the * * American Comm issioner * * would undoubtedly be justified in fi sing the amount specified in the contracts. those decisions the American Commi ssioner expressed his con- 399 I- - -- "^ "bK 400 William E. Mounsey, who, prior to his father' death, was engaged with him as co-partner- in a very prosperous and successful general Coa Wood and Express business, in the City of Chicago, that the son, under the firm name of William Mounsey William E. Mounsey, & Son, was then a man largely experienced in the business world enjoyed not only the fullest confidence trust of his father, the said William Mounsey, Deceased, but was likewise respected trusted with fullest confidence by his said other respective brothers and sisters, including the said claimant Elizabeth Mounsey, associates business world. It further appears from the attorney' affidavit that- the said William E. Mounsey is a man of the finest and highest type of mind, honest and trustworthy in the extreme, and because of those qualities in con- section with his business acumen was instrumental helping his father develop and establish a very successful coal, wood and express business, he, the son, still owns and operates successfully. It is to be noted in this respect that the son, William which Mounsey, does not file in this proceeding any affidavit in support contention that the fee requested by this attorney i of his sister' excessive. Furthermore, it is the claimant, that- pointed out by thi attorney, and not denied by the said claimant, Elizabeth Mounsey prior to the time of the execution by her of the said contract above referred to, had had a considerable business experi- ence. This Respondent is informed and believes that now was at that time a skilled accountant. She had been employed in the office of William Mounsey & Son for some considerable time, and as this Respondent is informed and believes to a large the said extent William Mounsey, Son, and when the said W charge of senior partner of illiam E. Mounsey office. the firm surviving After of William the death Mounsey was called to the colors in the World War, the said Elizabeth Mounsey, with others of said sur. giving operate children, said as this business Respondent during the entire is informed time ieves, William continued Mounsey was a- - 401 It further appears that James F . Bishop, who was appointed Ad- ministrator Estate William Mounsey, Deceased, the- Probate Court of Cook County, Illinois, on July 27, 1916, and as above indicated . December 27, against parently 1922, Germany, did not i , gave to this attorney a author was zing a lawyer raise any him of power of prosecute many objection years' attorney the Estate' tandin and who, dated claim ap- ) be the amount of the received by thi attorney under the contract with the dren dated February 28, 1916, term of whicl surviving chil- I he undoubt- edly was familiar time with of execution power attorney. In Docket Nos. and 598 it appears from the attorney' affidavit,. and i not denied by the claimant, that the claimant, at the time of the execution by her of the said contracts above referred to, hadf had no great amount of business experience as this Respondent is informed and believes, neverthe her interests were carefully looked after by her brother, the said William E. Mounsey, above referred In addition to that alleged by the attorney,. and not denied by the claimant, that. time of execution by the claimant of the services agreement with this attorney he had employ a Mr George Hornberger, a skilled investigator of proven e experience and trust, whom was assigned by this attor- ney the duty of investigation the facts and circumstances in connec- tion with the sinking of the Lusitania" for the purpose of obtaining information prosecution these claims. These investiga- tions brought Mr. (then Mrs. Sarah Hornberger in personal contact with Jane Lund) on many occasions and the claimant the ensuing- acquaintance resulted in her marriage to Mr. Hornberger on August 1916 City Waukeaan Illinois. From that time according to the attorney, the claimant was counselled and advised in a business wav by her hu sband- on, 402 attorney, authorizing him to prosecute r I , ae.* *g against Germany her claims .I as an individual and as widow of Charles Henry Lund, and also the claim of the Estate of Charles Henry Lund, without, so as the records before the Commissioner show, raising any objection fee agreements executed by her previously on February 1916. In these circumstances the American Commissioner holds that the claimants were capable of protecting their own interests in making these agreements with this attorney, and, accordingly, that fees fixed thereby were reasonable within the meaning of that term as defined in the above quoted extract from the Report of the Senate Committee on Finance recommending this legislation Senate. Consequently, as stated in that Report, " would undoubtedly be the American justified in fixing the amount Commissioner specified in the aforesaid contracts as reasonable fees in these cases. The other question presented these cases, namely, whether not, under the terms of the services agreements and subsequent amplification of these agreements by this attorney letters of Decem- ber 29, 1922, addressed to these claimants, the receipt of which neither been denied or acknowledged by the claimants, they are liable to the attorney for the expenses incurred by him in the and prosecution of these claims before this Commission, presentation clearly raises an issue tion involving over this issue interpretation is not conferred these upon contracts. American Jurisdic- Commis- .sioner by Section 9 of the Settlement of War Claims Act of 1928," which , as stated by the American Commissioner in his Decision No. 53 (page 331), makes no provision for the allowance of expenses and -disbursements. Now, therefore, in view of the considerations above set forth, and those stated general 1 Administrative and Jurisdictional Decision rendered American Commissioner under date RSpnt.mhnr 98 1f99R2 anrd annsiderinr that. th p. rv ips nf thi A ttnrnsV . *:* i. - m. 403 * presentation and prosecution of these claims is not decided or preju- diced hereby, The fee to Sarah American paid Jane Estat Commissioner by the Lund e of respective Hornberger Charles Henry decides and claimants, individually Lund fixes as the Elizabeth and reasonable Mounsey and Administratrix , Deceased, attorney, Robert P . Burkhalter, in these cases, the fees fixed in the respective agreements between them and this attorney, the said fees to be paid by the claimants and received by the attorney as full compensation all services claims, rendered as defined in in the Section prosecution 9 of and "Settlement collection War these Claims Act of 1928 " Done at Washington, June 23 1930. CHANDLER A7nerican ANDERSON, Commissioner, Mixed Claims Commi United States and Germany. 88Wl UNIVERSITY OF FLORID 131 126204 11111 8116 3 1262 08484 1864 ,E~EE: ~AVIVEE -~.: ::: "i |