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{
    "localId": "75729209",
    "label": "Letters Received to Chas. Stockdell Gray, Howard H. Barker [H.H. Barker], December 31, 1935",
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    "title": "Letters Received to Chas. Stockdell Gray, Howard H. Barker [H.H. Barker], December 31, 1935",
    "citationUrl": "https://catalog.archives.gov/id/75729209",
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        "Safety Light Collection",
        "Records Related to Radium Dial Painters"
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{
    "seq": 4,
    "pageIndex": 0,
    "type": "document",
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    "ocrText": "COLLINS & CORBIN\nCOUNSELLORS AT LAW\nCLEMENT K. CORBIN\nROBERT J. BAIN\nEDWARD A. MARKLEY\nCHARLES W. BROADHURST\nHOWARD F. MCINTYRE JAMES B. EMORY\nJAN 2 1935\n1 EXCHANGE PLACE,\nJERSEY CITY, N. J.\nPATRICK F. MC DEVITT\nJOHN F. LEONARD\nJAMES J. LANGAN\nADOLPH S. HUMMEL\nRAYMOND J. LAMB\nEARLE J. HARRINGTON\nSTANLEY G. BROOKS\nDecember 31, 1935.\nVincent P. La Porte, Admr. ad pros. etc. vs.\nUnited States Radium Corp.\nChas. Stockdell Gray, Esq.,\nCounsel, Globe Indemnity Co.,\n20 Washington Place,\nNewark, N. J.\nHoward H. Barker, Esq.,\nVice Pres., United States Radium Co.,\n535 Pearl Street,\nNew York City.\nGentlemen:\nOn last Friday, December 27, 1935, at Trenton, I\nappeared before Judge Forman upon presentation of final decree\nin the above equity suit. Mr. Emmerglick appeared for the\nplaintiff, Mr. Smith for the New Amsterdam Casualt y Company,\nMr. Gray and I for the Globe Indemnity Company and Mr. Barker\nfor the United States Radium Corporation. The form of decree\nas presented was not objected to either by the court or by Mr.\nEmmerglick, but the court brought up the subject of providing\ncompensation to a limited degree for Mr. Emmerglick, counsel\nfor the plaintiff and also to provide for payment of his dis-\nbursements. In fact, this matter had been called to the\nattention of counsel by the court before attending at Trenton,\nso that they might give it consideration.\nI prepared a memorandum on the legal right of the\ncourt to compel the United States Radium Corporation to make\npayment of the counsel fee and disbursements. While the law is\nnot entirely clear it seems to be fairly clear that the ourt\nhas no right to allow a counsel fee to the defeated party as\nagainst the prevailing party. For instance, in the case of\nHiggins V. Eaton, 204 Fed. 273 (C.C.A. 2d Circuit) the court\nsaid: \"Costs can seldom be awarded against a prevailing party\nunless he has been guilty of some fault or omission.\" In the\ncase of Hodgman, et al V. Atlantic Refining Co., 20 Fed (2d) 949,\nthe District Court for the District of Delaware held that while\nthe allowance of costs was discretionary, that that discretion\nis not an arbitrary one. \"In its discretion this court must be\ngoverned by the rule pertaining thereto. The general principle\nis that in suits in equity as in actions at law, the prevailing\nparty is entitled to costs. This principle must be applied\nChas. Stockdell Gray, Esq.,\nHoward H. Barker, Esq\n2\nunless the losing party can show that equity and good conscience\nrequires a different judgment.\"\nIt will therefore be seen that while costs can be\nallowed against a prevailing party there must be good reason for\ndoing SO. Judge Forman on last Friday stated that he felt Mr.\nEmmerglick should receive some compensation for the tremendo us\namount of work which he put into the case. Mr. Emmerglick stated\nto the court that he spent practically a year on the case in its\npreparation and trial and of course he spent six weeks in the\ntrial of the case. Judge Forman said that Mr. Emmerglick had\nrendered considerable aid to the court in arriving at a just and\nfair result, which of course was in favor of the adium Company\nand that he was very strongly of the opinion that even though\nhe did not have the power to grant costs and counsel fees, (which\nmeans the same thing for CO. nsel fees are taxed as part of the\ncosts) that he felt that the Radium Company should be magnanimous\nin the matter and likewise the insurance companies involved and\nthat they should pay something toward compensating Mr. Emmerglick\nfor his tireless work. He further stated that Mr. Emmerglick had\nput the presentation of the case on a very high plane and had\nnot attempted to get away from the facts, the scientific know-\nledge that was available and the law applicable and that this\nfair presentation of the ma tter in a great measure helped to\nsolve the question involved in favor of the Radium Company.\nMr. Emmerglick was thereupon asked by the court what\nhe felt would be a fair allowance and he stated to the cart that\nhe had an out of pocket expense which included an unpaid bill\nof the court stenographer for testimony, of appr oximately $1500.\nand that he felt that a fair allowance for his services would\nbe $7500. making up a total of $9000. Needless to say, I stated\nthat I was greatly shocked at the amount of Mr. Emmerglick's fee.\nHis disbursements of course are undoubtedly accurate and correct.\nI further stated to the court that I felt Mr. Emmerglick was\nproceeding on the theory that he was the successful and prevail-\ning party rather than the losing party and that under no cir-\ncumstances would my client countenance payment of any such sum.\nAfter a great deal of discussion the court finally suggested\n$2500. to Mr. Emmerglick plus $1500. for his disbursements, making\na total payment of $4000. The court also felt that of that sum\nthe Radium Company should pay $2000. and each of the insurance\ncompanies involved, namely, the Globe Indemnity and the New\nAmsterdam Casualty, 31000., with the understanding of all con-\ncerned that counsel would report back to their respective clients\nand advise the court as soon as practicable just what would be\npaid to Mr. Emmerglick, if anything.\nChas. Stockdell Gray, Esq\nHoward H. Barker, Esq\n#3\nIt is my recommendation that the Radium Company\nshould pay $2000. and that the Globe should pay $1000. So\nfar as the New Amsterdam is concerned, Mr. Edwin F. Smith who\nrepresents that Company will have to get authority from it\nto pay 1000.\nIn conclusion, the court stated that if the pa rties\nwere unwilling to make the foregoing payments he would regard\nhis suggestion as without ejudice to the allowance in the\nfinal decree of a much larger sum to Mr. Emmerglick, because\nhe knew if he allowed anything it would be appealed, and there-\nfore if the fee had to be allowed by a court order it would\nhave to be much larger and more in proportion to the services\nrendered. If we should decline to make the payment the\nprobability is that the allowance by the court which it will\nofficially make will be much larger. It may be as much as\n7500. but in all probability will be 5000. It is my opinion\nthat any such allowance could probably be reversed as improper.\nHowever, it is my recommendation as stated above, that if we\ncan make the payment suggested by the court it would be wise\nto do so. This is so in addition to the reasons already\nstated, for the further reason that Mr. Emmerglick appears\nin four other cases in which he promised us discontinuarces.\nof course there will be no appeal from Judge Forman's decision\nand Mr. Emmerglick promised that he will not engage in any\nother radium litigation, but that he will refuse to represent\nany other claimant. The result will be that we will get rid\nof four other cases and possibly more and in addition, Mr.\nEmmerglick 111 cease to be a factor in the prosecution of such\ncases; also there will be no appeal in the La Porte case.\nPlease let me have your instructions as soon as\npracticable.\nYours very truly,\nEAM:AG"
}