Barrus v. Phaneuf

• Decision Date: 21 May 1896
• Citation: 166 Mass. 123,44 N.E. 141
• Parties: BARRUS v. PHANEUF.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 123

44 N.E. 141

BARRUS v. PHANEUF.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1896

COUNSEL

Herbert L. Baker, for plaintiff.

R.W Shea, for defendant.

OPINION

ALLEN J.

The jury must have found, upon the evidence, that the defendant engaged the plaintiff to go into court at a future day and testify for him as an expert in regard to a matter which the plaintiff had examined as a civil engineer.From the dates given it would seem that this engagement was six weeks before the trial.The plaintiff agreed to do this, and talked over the matter, and went into court and testified and during the progress of the trial advised the defendant's attorney in regard to the questions to be asked of himself and of the other witnesses.At some time after he had so agreed to appear and testify the plaintiff was regularly summoned by the defendant as a witness, and was paid the statutory fees, and made no objection thereto, and made no claim for extra compensation, and it would seem that during his testimony, he was not, in fact, asked any questions which called for his opinions as an expert.

The defendant contends that, if there was an express promise to pay the plaintiff extra compensation, such promise was without consideration, and that the plaintiff did no more than he was legally required to do under his subpoena.In this commonwealth, every justice of the peace may issue summonses for witnesses in civil cases.St.1885, c. 141.This is usually done by the party's attorney, if he is a justice of the peace, or by a justice upon the mere request of a party or of his attorney, without any consideration of the materiality of the evidence or of other circumstances.No doubt, here, as in England, the court might interpose to prevent this privilege from being used oppressively.Raymond v. Tapson,22 Ch.Div. 430.But usually no question arises unless a witness fails to attend, in which case the court may issue a warrant to bring him in.Pub.St c. 169, § 6.The issuing of this warrant is a matter of discretion, and before issuing it the court usually must be satisfied that the testimony is material, and that the failure to attend is without reasonable excuse.We should be slow to admit that the court would be without power to require the attendance of a professional or skilled witness, upon a summons duly served, and with payment of the statutory fees, although he was unacquainted with the facts, and could testify only to opinions; but such power would hardly be exercised unless, in the opinion of the court, it was necessary for the purposes of justice.Ex parte Roelker, 1 Spr. 276, Fed.Cas. No. 11,995;Webb v. Page, 1 Car. & K. 23;Parkinson v. Atkinson, 31 LawJ.C.P. 199. Whart.Ev. §§ 380-383.Even in such case the court would probably be without the power to compel the witness to make a study of the case beforehand, or to pay attention to the body of evidence introduced by the parties with a view to forming an opinion thereon.It would seem that one who is summoned as an expert would perform all that the court could require of him if he should hold himself in readiness to be called upon to testify to such opinions as he might have when his turn should come.People v. Montgomery,13 Abb.Prac.(N.S.) 207.Flinn v. Prairie Co.,60 Ark. 204, 29 S.W. 459.If a party is content to rest upon his legal rights, and to summon the expert whose testimony he wishes to have, and to pay the statutory fees, without any previous engagement or understanding with him, and to take his chance of being able to get an attachment to bring the witness into court in case he should fail to appear, and if he thus succeeds in getting the testimony which he wishes, and afterwards refuses to pay any special compensation, the question might be directly presented whether the witness would be entitled to recover anything on a...