David S. GEER, Appt., v. Robert J. FRANK et al. J. L. BENNETT, Appt., v. SAME. (179 I. 570.) R. Co. 148 Mass. 72, are quoted with approv-|guilty was therefore properly refused, and al, in both of which cases it was held to be the judgment of the Appellate Court will be a question of fact whether a person riding| affirmed. upon the platform of a street car, or attempting to get upon a street car in motion. was guilty of negligence. Meesel v. Lynn & B. R. Co. 8 Allen, 234, is also cited. In the decision of this case it is said: "The seats inside the car are not the only places where the managers of the train expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and then to stand upon the platforms till they are full, and continue to stop and receive them even after there is no place for them to stand except on the steps of the platforms. Neither the officers of these corporations nor the managers of the cars nor the traveling public seem to regard this practice as hazardous, nor does experience, thus far, seem to require that it should be restrained upon the ground of its danger. There is therefore no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury, upon the special 1. 2. An agreement by which an attorney is to bear the costs and expense of litigation, in consideration of an interest in the recovery, is champertous and void. A contract giving each of two attorneys an interest in the subjectmatter of litigation, in consideration of the legal services to be performed by each of them, and also of the payment of the costs and expenses of litigation by one of them, is void as to both because of the illegal provision as to the payment of costs and expenses by one of them. (April 4, 1899.) PPEALS by plaintiffs from a judgment circumstances which appeared in evidence." A of the Appellate Court, First District, suit brought to compel an accounting of plaintiff's share of the proceeds of a settlement of a law suit. Affirmed. In Upham v. Detroit City R. Co. 85 Mich. 12, 12 L. R. A. 129, where a party was in-affirming a judgment of the Superior Court jured while riding on the front platform of for Cook County in favor of defendants in a a street car, in the discussion of the same question involved here the court said: "Defendant's counsel assert that plaintiff left a place of safety inside the car, and voluntarily chose one of danger upon the platform, and that, as his injury was due in part to the fact that he voluntarily took that position, he cannot recover. The facts are stated in the opinion. The provision that Frank shall not settle or compromise his claim makes the whole agreement void. North Chicago Street R. Co. v. Ackley, 171 Ill. 100. The agreement is champertous as to Ben nett. Bennett agreed to pay the court costs and accept a portion of the proceeds of the litigation for his compensation. Such an agreement is illegal. Thompson v. Reynolds, 73 Ill. 12; West Chicago Park Comrs. v. Coleman, 108 Ill. 591; Phillips v. South Park Comrs. 119 Ill. 626. The answer to the question depends entirely, we think, upon whether or not it is negligence, per se, to ride upon the platform of a street car, when one may ride within. Whether one leaves the car, after entering, to ride upon the platform, or whether he steps upon the platform without entering, is of no consequence. His act is as voluntary in the one case as in the other, and the same rule must govern both. The record is entirely silent as to any regulations on the part of the defendant in this respect. But we cannot denude ourselves of the knowledge, which is alike common to all, that passengers are constantly riding upon these platforms with the tacit assent of the defendant, and without any protest, notice, or regulation. . . . In the presence of the fact that passengers are permitted to ride upon these platforms constantly, can courts hold them to be dangerous per se?" There are other cases establishing the same doctrine, but the rule is so well settled that the citation of other cases is not deemed necessary. The plain- Lawson, Contracts, § 341; Henderson v. tiff stepped out upon the platform for the Palmer, 71 Ill. 579, 22 Am. Rep. 117; Tobey purpose of leaving the car when it ap-v. Robinson, 99 III. 222; St. Louis, J. & C. proached his residence, and there was ample R. Co. v. Mathers, 104 Ill. 257. evidence tending to show that he was in the exercise of ordinary care. There was also ample evidence tending to prove that the accident was caused by the negligence of the railway company. The instruction to find the defendant not The agreement is also champertous as to Geer. Where a promise is based upon several considerations, and one of those considerations is illegal, the entire contract is void, because it is impossible to say which one of the several considerations contributed most to inducing the promise. The agreement is void on grounds of public policy. torneys, see also Croco v. Oregon Short-Line R. NOTE. For champertous contracts with at Co. (Utah) 44 L. R. A. 285, and other cases cited in footnote thereto. An attorney cannot during the pendency | of a suit in relation to a particular subjectmatter make any contract with his client which is binding upon the client for a portion of the subject-matter in litigation. Elmore v. Johnson, 143 Ill. 513, 21 L. R. A. 366; Rogers v. Marshall, 3 McCrary, 76. An attorney must observe the most scrupulous fairness in his dealings with his client. Mechem, Agency, § 821; Bishop, Contr. § 740; Zeigler v. Hughes, 55 Ill. 288; Hopkinson v. Jones, 28 Ill. App. 409; Willin v. Burdette, 172 Ill. 117; Jennings v. McConnel, 17 Ill. 148. Cartwright, J., delivered the opinion of the court: David S. Geer filed the original bill in this case in the superior court of Cook county; alleging that on August 29, 1895, he entered into an agreement with Robert J. Frank, by which Frank assigned to him an undivided one third of a claim of said Frank against the American Automatic Lighting Company, F. A. Cody, and L. T. Lawton, in consideration of his services to be rendered in prosecuting the same; that Frank agreed that he would not make any compromise, settlement, release, or satisfaction of the claim without Geer's consent; that Geer prosecuted the case, and obtained a judgment in favor of Frank for $1,007.66 and costs; that Frank settled the judgment with the defendants therein, and satisfied the same, and refused to account; and that J. L. Bennett claimed some interest in the fund. The bill made said parties defendants, together with others who were alleged to have the fund or some portion of it, and prayed for the appointment of a receiver and an accounting, and a decree for the sum due. Bennett answered the bill, admitting its averments, and filed a cross bill setting out the agreement in hæc rerba, as follows: Bennett then alleged in his cross bill that he rendered services as an attorney, in conjunction with Geer, in the collection of the claim, and paid Frank $59.69, on his request, under the agreement to pay costs and expenses, and that Frank settled the judgment for $700, and refused to account. He therefore asked for a decree for what was due him. The bill and cross bill were answered by the other defendants; and Frank denied the right of Geer and Bennett, or either of them, to an accounting, alleged that the contract was not performed or his suit properly prosecuted, and charged that the agreement was unlawful. Upon a hearing, the superior court dismissed the bill and cross bill, and the complainant in each appealed. The appellate court affirmed the decree, and granted Geer and Bennett are in this court as appela certificate of importance, by virtue of which lants, asking a reversal of the judgment of the appellate court. It appeared, on the hearing, that there had been an agreement between Geer and Frank, previous to the one of August 29, 1895, alleged in the bill and set ment Geer was to prosecute the claim and reout in the cross bill, by which previous agreeceive one half the amount recovered or received, in settlement for his professional services, and Frank was to advance the costs. That agreement is not a subject for consideration here, both because it was not alleged in the bill or made a foundation for any claim, and because it was abandoned, and the agreement so alleged between the three parties was substituted for it. Disregarding all other questions argued, we are of the opinion that the agreement is illegal and void. It was said in Newkirk son v. Cone, 18 Ill. 449, that the common law of champerty had been abolished in this state, but this statement was corrected in Thompv. Reynolds, 73 Ill. 11, where it was said the former decision was manifestly a mistake, and that the question was not involved in such former decision, the champertous agreement having been abandoned by the parties, by mutual consent. The law of champerty has been somewhat qualified by our decisions, but it is a part of the law of the state. We have held, in consonance with the great weight of modern authority, that an attorney may make an agreement for contingent fees of a legitimate character, by which he is to receive a certain share or part of the money or thing recovered. West Chi It is agreed, by and between Robert J. Frank, David S. Geer, and J. L. Bennett, that said Frank assigns to said Geer and Bennett each a one-third interest in his claim against the American Automatic Lighting Company, Cody, and Lawton. Said Geer, in consideration of said assignment, is to give his legal services, in conjunction with said Bennett, to the prosecution of any suits or other proceedings for the liquidation and settlement of said claim. Said Bennett, in consideration of said assignment, is to pay the necessary expenses, in the way of cash out-cago Park Comrs. v. Coleman, 108 Ill. 591; lays, for court costs, etc., and give an equal amount of his legal services, in the same manner as Mr. Geer. For the costs and ex penses already paid, said Bennett has paid said Frank $25 in cash, and is to pay the balance, as requested by said Frank. It is agreed by all of said parties that no settlement or compromise of said claim shall be made without the assent of all parties. Chicago, Ill., August 29, 1895. Robert J. Frank, In such a case, he has no interest in the litiPhillips v. South Park Comrs. 119 Ill. 626. gation, except that of an attorney, and to the extent of his legal services; and if such a contract is not against conscience, and reasonable in its terms, a court of equity would doubtless enforce it. The law, however, does not permit a person having no interest in the subject-matter of a suit to become interested in it, and concerned in its prosecution; and an agreement by which such person, although an attorney, agrees to bear expense and costs of litigation, falls within the definition of champerty, and will not be enforced, either at law or in equity. Gilbert v. Holmes, 64 Ill. 548; Thompson v. Reynolds, 73 Ill. 11. Under these rules the agreement between Bennett and Frank was champer tous, and the undertakings of Geer and Bennett were so mutually dependent upon each other, as a consideration for the agreement of Frank, that the whole contract was tainted with illegality. The considerations for Frank's promise were the agreement of Geer to render legal services in conjunction with Bennett, Bennett's agreement to render legal services in conjunction with Geer, and Bennett's agreement to pay the costs and expenses. The agreement could not be performed, and Geer render the services which he promised, except by Bennett carrying out his champertous agreement, and it was so executed. The undertakings cannot be separated, and, one of the considerations inducing the promise of Frank being illegal, the entire contract is void, and a court of equity will not aid in its enforcement. The judgment of the Appellate Court is affirmed. Petition for rehearing denied June 7, 1899. MISSISSIPPI SUPREME COURT. C. C. COFFEE, Appt., v. conductor insisted on charging conductor's rates which were 1 cent a mile higher than LOUISVILLE & NASHVILLE RAILROAD ticket rates. Plaintiff refused to pay them, 1. COMPANY. (........Miss.........) The ejection of a passenger who has no ticket, because he will not pay more than the regular fare, is wrongful where his failure to get a ticket, for which he otherwise would have had time, was, without any fault of his, due to delay in finding his satchel in the baggage room, where he had left it without any check, at a time when the ticket office was closed, as he was directed to do by the baggage master, who refused to give him a check until he had procured his ticket. 2. A rule that a baggage master shall not receive baggage into the baggage room until a ticket shall have been procured is an imposition on the public, unreasonable, and void. (March 6, 1899.) APPEAL by plaintiff from a judgment of Circuit Court for Jackson County in favor of defendant in an action brought to recover damages for wrongful ejection from defendant's train. Reversed. Plaintiff boarded defendant's train at Mobile, and when asked for ticket or fare, stated that he arrived in Mobile earlier on the same day, and went immediately to the baggage room of the defendant company, and asked the baggage master to check his valise, but that the man refused to do so until he got a ticket. The ticket office was not open at that time, so with the baggageman's permission he left the valise with him until he could get a ticket and have it checked. That a few moments before the departure of the train which he was to take he returned to the depot, but could not find his valise. He searched for it until too late to get a ticket, and secured it just as the train was about to move off, so he was compelled to get on board immediately, or be left. The NOTE. For validity of extra charge for passenger fare when paid on train, see also Phettiplace v. Northern P. R. Co. (Wis.) 20 L. R. A. 483. and the conductor put him off the train. The defendant insisted on its rule, which did not allow baggage masters to receive small baggage unless and until it was checked, as tending to relieve it from responsibility for the delay in finding the baggage. The court instructed the jury to return a verdict in de fendant's favor. Messrs. Denny & Woods for appellant. Messrs. Mayes & Harris, for appellee: The defendant's ticket office at the depot in Mobile was open for an hour before the train left, and plaintiff boarded the train without making any effort to obtain a ticket, and, upon being required to pay the conductor's rate for his passage, declined to do so, and was thereupon ordered to leave the train at St. Elmo, Alabama, and did so. The conductor had the right to demand the increased rate, and to eject plaintiff upon his failure to pay it. Forsee v. Alabama G. S. R. Co. 63 Miss. 1856 Am. Rep. 801; 3 Wood, Kailroads, The ejection being lawful, the recovery, if any, must have been for any damage done by the language, and could not include the inconvenience, loss, or expense incident to the lawful ejectment. L. R. A. 347; Rose v. Wilmington & W. R. Texas P. R. Co. v. James, 82 Tex. 306, 15 Co. 106 N. C. 168. The wrongs complained of were consented to for the purpose of obtaining a cause of action, and the doctrine of velenti non fit injuria was applicable. McGhee v. Drisdale, 111 Ala. 599. See also Alabama & V. R. Co. v. Gibbs (Miss.) 12 So. 545. But even if the language used by the conductor caused plaintiff to suffer untold mental anguish, he could not recover, for such mental anguish was not accompanied by any injury to his person or property, and for such damages no recovery can be had. 412; Haile v. Texas & P. R. Co. 23 U. S. Gulf, C. & S. F. R. Co. v. Trott, 86 Tex. App. 80, 60 Fed. Rep. 557, 9 C. C. A. 134, 23 L. R. A. 774; Western U. Teleg. Co. v. Rog ers, 68 Miss. 748, 13 L. R. A. 859; 3 Suth- | rule that baggage shall not be checked until erland, Damages, 715; Kennon v. Gilmer, 131 U. S. 26, 33 L. ed. 112. When a passenger goes to a depot too late to attend to his baggage and purchase his ticket before entering the train, this will not relieve him from the obligation of purchasing a ticket. Lake Erie & W. R. Co. v. Mays, 4 Ind. App. 413; Hoffbauer v. Davenport & N. W. R. Co. 52 Iowa, 342, 35 Am. Rep. 278. And if he fails to pay his fare, he may be properly ejected. Georgia Southern & F. R. Co. v. Asmore, 88 Ga. 529, 16 L. R. A. 53. Appellant did not even have the right to have the train stop long enough for him to obtain a ticket. Atchison, T. & S. F. R. Co. v. Hogue, 50 Kan. 40. Whitfield, J., delivered the opinion of the court: The case should have gone to the jury. A a ticket has been procured is a reasonable regulation to prevent imposition upon the company. But a rule that a baggage master shall not receive into the baggage room baggage until a ticket shall have been procured, if there be such a rule, is an imposition on the public, unreasonable, and void. It would require intending passengers to care for their own baggage in many situations that may readily be imagined, where to do so would be entirely impracticable. Every reasonable facility for travel should be afforded those who are intending passengers, and rules should be so framed as to be just in their provisions, alike to the company and the traveling public. As to the authority of the baggage master, see Isaacson v. New York C. & H. R. R. Co. 94 Rehearing denied. NEBRASKA SUPREME COURT. NEBRASKA TELEPHONE Piff. in Err., v. STATE of Nebraska, .1. COMPANY, E RROR to the District Court for Douglas County to review a judgment in favor of relator in a proceeding brought to compel ex rel. John O. YEI- defendant to give relator telephone facilities at certain rates which were less than those demanded by defendant. Reversed. SER. (55 Neb. 627.) A litigant will not be permitted to invoke the extraordinary remedy of mandamus when an express statute affords him an adequate remedy for the redress of the grievance of which he complains. 2. A private corporation, engaged in the business of operating a telephone plant, is a common carrier of news and in telligence. 3. Such a public-service corporation is charged with certain public duties, among which are to furnish for a reasonable compensation to any citizen a telephone and telephonic service, and to charge each patron for the service rendered the same price it charges every other patron for the same service under substantially the same or similar conditions. The facts are stated in the opinion. Messrs. Charles Offutt and W. W. Morsman, for plaintiff in error: The alternative writ contained no averment that the relator had applied to the board of transportation and exhausted the remedy there. Under the act of 1887, creating the Board of transportation and defining its powers, the board had ample power to fix and establish rates for railroad companies. State Board of Transportation v. Fremont, E. & M. Valley R. Co. 22 Neb. 313, 23 Neb. 117. The remedy by writ of mandamus cannot be invoked if the relator has another remedy. State, Moore, v. Chicago, St. P. M. & O. Ř. Co. 19 Neb. 482; State, Mattoon, v. Republican Valley R. Co. 17 Neb. 647, 52 Am. Rep. 424; Northern P. R. Co. v. Washington Territory, Dustin, 142 U. S. 492, 35 L. ed. 1092; Spelling. Extraordinary Relief, § 1372. demand, nor is the respondent under any The relator has no clear, legal right to duty, especially enjoined by law, that its rates be fixed at a sum which will produce no more than a "fair, reasonable, and just dividend" to its stockholders. The relator's right to have the specific thing he demands performed by the respondent must be clear and certain. State, Beatty, v. Omaha, 14 Neb. 265, 45 Am. Rep. 108; State, Hymer, v. Nelson, 21 Neb. 572; State, First Nat. Bank, v. Cook, 43 Neb. 318; State, Gillilan, v. Home Street R. Co. 43 Neb. 830; State, Wyckoff, v. Merrell, 43 Neb. 575; Laflin v. State, Gray, 49 Neb. | Board of Transportation v. Fremont, E. & 614. M. Valley R. Co. 22 Neb. 313, 23 Neb. 117. The averments of discrimination are wholly immaterial. There is no principle of law which forbids a corporation, or person, prosecuting a quasi public business, from charging for services performed, or for the use of property furnished, all that the service or use is fairly and reasonably worth, regardless of the amount of profits that may be earned, any more than there is in the case of business of a purely private character. The state acting through the legislative department undoubtedly possesses the power to fix by law the value of such service, by prescribing the maximum charge which may be taken. What limitation exists upon this power, by the state, has not yet been clearly decided; but it has been repeatedly held that the power is not without limitation. Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209; Reagan v. Farmers' Loan & T. Co. 154 U. S. 395, 38 L. ed. 1022, 4 Inters. Com. Rep. 560. The legislature has power to fix rates, and the extent of judicial interference is protection against unreasonable rates. Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 36 L. ed. 176. We know of but one case in which such a contention as is made here has been made, and in that the contention was pronounced preposterous. Canada Southern R. Co. v. International Bridge Co. L. R. 8 App. Cas. 723. The rates can be made neither too high nor too low, without producing a loss of revenue. To avoid this requires the constant exercise of judgment and discretion and prompt recognition of economic conditions and forces. This necessary discretion and judgment cannot be controlled by mandamus. Northern P. R. Co. v. Washington Territory, Dustin, 142 U. S. 492, 35 L. ed. 1092; People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 58 Am. Rep. 484. The alternative writ contained no averment of facts showing that the service sought to be coerced was a duty "specially enjoined by law." The power to fix the rates is a legislative power. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 22 L. ed. 678; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 156, 24 L. ed. 94; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Peik v. Chicago & N. W. R. Co. 94 U. S. 169, 24 L. ed. 97; Winona & St. P. R. Co. v. Blake, 94 U. S. 181, 24 L. ed. 99; Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209; Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 36 L. ed. 176; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560; State Western U. Teleg. Co. v. Call Pub. Co. 44 Neb. 326, 27 L. R. A. 622. Mr. John O. Yeiser, in propria persona: Corporations or natural persons engaged in certain classes of business or business for certain purposes are subject to regulation and control by the state. This regulation is applicable to any business which may be classified under the three general heads: 1. Common carriers. People v. Budd, 117 N. Y. 19, 5 L. R. A. 559; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 568, 30 L. ed. 248, 1 Inters. Com. Rep. 31; Budd v. New York, 143 U. S. 537, 36 L. ed. 253, 4 Inters. Com. Rep. 45; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 455, 33 L. ed. 979, 3 Inters. Com. Rep. 209; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 217, 29 L. ed. 166, 1 Inters. Com. Rep. 382. 2. Public monopolies. Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 173; Brass v. North Dakota, Stoeser, 153 U. S. 403, 38 L. ed. 761, 4 Inters. Com. Rep. 670; People v. Budd, 117 N. Y. 16, 5 L. R. A. 559; Chesapeake & P. Teleph. Co. v. Baltimore & O. Teleg. Co. 66 Md. 399, 59 Am. Rep. 167; Frederick v. Groshon, 30 Md. 446, 96 Am. Dec. 591; State, Webster, v. Nebraska Teleph. Co. 17 Neb. 126, 52 Am. Rep. 404; Haugen v. Albina Light & Water Co. 21 Or. 418, 14 L. R. A. 424. 3. Business in which the public have an interest or a public necessity. People v. Budd, 117 N. Y. 16, 5 L. R. A. 559; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31. Telephone companies are subject to regulation by reason of the fact of their being engaged in a business partaking of all three of the elements or principles which permit of the regulation of a business by the state, viz.: 1. As a common carrier. State, Webster, v. Nebraska Teleph. Co. 17 Neb. 126, 52 Am. Rep. 404: Hockett v. State, 105 Ind. 257, 55 Am. Rep. 201; Chesapeake & P. Teleph. Co. v. Baltimore & O. Teleg. Co. 66 Md. 399, 59 Am. Rep. 167; State, Postal Teleg. Cable Co., v. Delaware & A. Teleg. & Teleph. Co. 47 Fed. Rep. 636; St. Louis v. Bell Teleph. Co. 96 Mo. 623, 2 L. R. A. 278; Central Union Teleph. Co. v. Bradbury, 106 Ind. 1; Delaware & 4. Teleg. & Teleph. Co. v. State, Postal Teleg. Cable Co., 3 U. S. App. 30, 50 Fed. Rep. 678, 2 C. C. A. 1; Central Union Teleph. Co. v. State, Falley, 118 Ind. 194; People v. Budd, 117 N. Y. 22, 5 L. R. A. 559; Gillis v. Western U. Teleg. Co. 61 Vt. 465, 4 L. R. A. 611; Bell Teleph. Co. v. Com., Baltimore & O. Teleg. Co. (Pa.) 3 Atl. 825 |