Board of Com'rs of Larimer County v. Lee

• Decision Date: 27 March 1893
• Citation: 32 P. 841,3 Colo.App. 177
• Parties: BOARD OF COM'RS OF LARIMER COUNTY v. LEE.
• Court: Colorado Court of Appeals

32 P. 841

3 Colo.App. 177

BOARD OF COM'RS OF LARIMER COUNTY v. LEE.

Court of Appeals of Colorado

March 27, 1893

Appeal from district court, Larimer county.

Action by E.A. Lee against the board of commissioners of the county of Larimer to recover witness fees. Plaintiff obtained judgment. Defendant appeals. Reversed.

Robinson & Love, for appellant.

E.A Ballard, for appellee.

BISSELL J.

This case is the outgrowth of that cause celebre known as the Millington Case. The Millingtons were indicted for the murder of one Avery by the administration of poison. To determine the effects of certain poisons, the symptoms by which they were manifested, and their resultant operations on the physical system, necessarily became an important subject of inquiry on the trial. It is impossible to ascertain from the present record exactly when, or under what circumstances, the appellee, Lee, was called as a witness but it is easily gathered from the agreed state of facts on which the case was tried that at some time during the progress of the trial the district attorney applied to the court for an order to subpoena 13 persons as expert witnesses to testify on these medical and toxicological questions. The witnesses were not subpoenaed, put on the stand, or asked to testify prior to the time the order was made. They came in obedience to the subpoenas, and, in evident reliance upon the validity of the order, voluntarily gave evidence touching the matters about which they were interrogated. They did not insist that their fees should be paid before testifying, nor did they refuse to testify on the ground that their professional opinions could not be sought without additional compensation. These latter distinctions are expressed to illustrate in the subsequent discussion the difference between the present case and the authorities relied upon by Lee to support his action. When the trial was concluded, Lee presented his claim to the board of county commissioners of Larimer county for fees at the rate of $25 per day for thirteen days, and 20 cents per mile for 75 miles of travel. The board refused to allow this claim as presented, but did audit it at the sum of $1.50 per day and mileage at 10 cents per mile which are the rates and costs fixed by statute as the compensation of an ordinary witness attending a criminal trial. Thereafter, by regular statutory proceedings, the matter came before the district court for adjudication, and that court decided that the judge presiding over the trial of the Millington Case had power to make the order allowing these expert witnesses additional compensation, and rendered judgment against the county for the amount which Lee claimed. The board brings the case here, and insists that no cause of action came to plaintiff for his extraordinary compensation by reason of the order.

The question presented is one of first impression in this state. The subject has received judicial consideration in other tribunals, and the authorities are not uniform on the subject. Wherever the matter has been presented, it has come up under circumstances which show that the witness when subpoenaed refused to testify until his expert fees had been paid. The courts have then considered the question in the light of the right of a witness to refuse to express his professional opinions before he is paid an additional and greater compensation than that fixed by the statute as the pay of the ordinary witness, who testifies as to facts. This circumstance may possibly make no difference in the application of the rule which will be announced, but it presents undoubtedly a very palpable distinction between those cases and the one at bar. The authorities which adjudge additional compensation to be the right of the expert, and which assert his privilege to refuse to testify until paid are not in harmony as to the basis on which their conclusions are rested. Some declare that he is entitled to the extra pay because his professional opinions are his own property, which cannot be extracted from him except for an honorarium, which shall be satisfactory to the witness; and others, on the ground that the time of a professional witness called as such has a value beyond that of a witness who is called to testify to a fact regardless of his business or his status. The line of authorities adjudging the contrary are on reason and principle much more satisfactory, and would undoubtedly be followed by this court were the question presented under the identical aspect exhibited in those decisions. They hold that when a professional witness attends in obedience to an ordinary subpoena he may be compelled to express his opinions on hypothetical questions, or on general medical and toxicological subjects, as an ordinary witness is compelled to testify on questions of fact within his knowledge, and for the same statutory fees. These authorities...