Barry v. Kettelle

• Decision Date: 06 January 1928
• Docket Number: No. 6447.,6447.
• Parties: BARRY v. KETTELLE.
• Court: Rhode Island Supreme Court

139 A. 664

BARRY

v. KETTELLE.

No. 6447.

Supreme Court of Rhode Island.

Jan. 6, 1928.

Exceptions from Superior Court, Kent County; Herbert L. Carpenter, Judge.

Action of the case in assumpsit by Patrick P. Barry against Edward G. Kettelle. Verdict for plaintiff, and defendant brings exception. Exception sustained, and case remitted.

Cooney & Cooney, of Providence, for plaintiff.

E. Raymond Walsh, of Providence, for defendant.

SWEENEY, J. This is an action of the case in assumpsit in which a jury in the superior court returned a verdict for the plaintiff. Defendant has brought the ease to this court by his bill of exceptions.

Plaintiff is an attorney and counselor at law. He testified that he performed professional services for defendant for which he charged $1,000. He called two attorneys as witnesses, and they testified that $1,000 was a fair charge for his services.

The defense was that, on account of the business and social relations existing between the parties, defendant understood that plaintiff's services were to be gratuitous. Defendant introduced no testimony as to the value of plaintiff's services.

In charging the jury, the trial justice said the plaintiff had testified that his services were worth $1,000; that two attorneys had testified that plaintiff's services were worth $1,000; and that, if the plaintiff is entitled to anything, he is entitled to $1,000, no less. Defendant took an exception to this portion of the charge, and the exception is now urged in this court.

The jury retired, and, after considering the case for some time, being unable to agree, returned into court. Upon being questioned by the trial justice as to the cause of their disagreement the foreman of the jury said the only question is: "Can the jury fix the amount? We couldn't name any amount." The trial justice replied :

"As I charged you this morning, if any amount is due, it is the amount of $1,000, but, if you find there is evidence upon which you can fix an amount less than $1,000, it is for you to decide. I will change my charge to that extent. I don't want to be misunderstood, but there must be evidence upon which you can fix that amount. You cannot conjecture or guess."

The jury retired, and soon afterwards brought in a verdict for $630.

Defendant's exception is sustained as the portion of the charge excepted to deprived the jury of their right to determine the value of plaintiff's services. In Fletcher & Bros. v. Seekell, 1 R. I. 267, in charging a jury, the court, after mentioning the weight to be given to the opinions of mechanics, said:

"But still you are to be guided by your own judgments upon all the evidence, enlightened, indeed, but not controlled by their opinions."

The value of professional services is a question about which reasonable men may well differ, and is one which is exceptionally suitable for determination by a jury. Crafts v. Mechanics' Savings Bank (R. I.) 102 A. 516. The leading case upon this question is that of Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028. The action was brought to recover for professional services as attorney. When instructing the jury, the court, after referring to the fact that several attorneys had testified as to the value of plaintiff's services, said:

"You must determine the value of the services rendered from the evidence that has been offered before you, and not from your own knowledge or ideas as to the value of such services."

This instruction was held to be erroneous, as it should have been qualified by the instructions asked for by defendant, namely, "that in determining the value of plaintiff's services the jury was not bound by the testimony of the expert witnesses." The general rule is that the opinions of expert witnesses are not, as a matter of law, to be accepted by the jury in place of their own judgment. Notes to Hull v. City of St. Louis, 42 L. R. A. 753, 768; Fowle v. Parsons,...