Callan v. Hample
| Decision Date | 04 May 1925 |
| Docket Number | 5661. |
| Citation | 236 P. 550,73 Mont. 321 |
| Parties | CALLAN v. HAMPLE. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Action by J. P. Callan against J. E. Hample. Judgment for plaintiff and defendant appeals. Remanded, with directions to modify.
Walker & Walker and C. S. Wagner, all of Butte, for appellant.
William Meyer, of Butte, for respondent.
The complaint herein alleges that the plaintiff is an expert accountant who, during the years 1922 and 1923, performed services for the defendant at his special instance and request, of the reasonable value of $1,074, and, in connection therewith, incurred expenses, increasing the total to $1,086.50, and that no part thereof has been paid. The answer admits that plaintiff is an expert accountant and denies the remaining allegations of the complaint.
After answer, defendant made demand for a bill of particulars which was furnished May 10, 1923, and shows the number of days plaintiff claims to have worked and a charge of $25 per day, and also the dates of services rendered by an "assistant" at $5 per day; also the items of expense claimed.
The trial commenced on April 11, 1924. While on the stand plaintiff was asked: "In doing the work in 1921, did you employ anyone besides yourself?" He was not permitted to answer, and thereupon asked and was granted, over objection, leave to amend the complaint by interlining, after his allegation of the performance of services and before the phrase "which were reasonably worth," the words "which said services required the service of an assistant, all of." No change was made in the amount claimed, and the complaint was thus made to conform to the items set out in the bill of particulars. Defendant then moved for a continuance in order to further plead, which motion was denied. The jury returned a verdict for the full amount claimed, and judgment was entered thereon. Defendant moved for a new trial; in the absence of Judge Jackson, who presided at the trial, the motion was submitted to Judge Carroll without argument, and was by the court overruled.
(1) The first specification of error is "that the complaint does not state facts sufficient to constitute a cause of action." As to this general ground of challenge to the complaint, it is only necessary to say that the complaint is in the usual form for such a cause of action and sufficiently complies with the requirements of section 9129, Revised Codes of 1921. Indeed, counsel do not seriously contend that the complaint, as originally filed, is insufficient, but they do contend that the amendment referred to is a departure from, and changes, the cause of action, and, under the circumstances, renders the complaint insufficient. There is no merit in the contention.
The character and effect of the employment of an expert accountant does not differ materially from the employment of a doctor, a lawyer, or other professional man. He is retained to perform services requiring his personal skill and technical knowledge not common to the one employing him, and therefore to proceed with the work in accordance with his own methods and ideas without being subject to direction or orders from his employer as to details. Such an employment does not constitute the relation of master and servant, and is not governed by the rules applicable to such relation. 26 Cyc. 970; Eldred v. Mackie, 178 Mass. 1, 59 N.E. 673; Groesbeck v. Pinson, 21 Tex.Civ.App. 44, 50 S.W. 620. Such employment of professional men and skilled workers may necessarily entail the employment of others to attend to certain details, and the outlay of incidental expense money, and a contract to pay the expenses thus necessarily incurred, as well as and in addition to the reasonable value of the services of such an one, may be inferred from the nature of the employment and the surrounding circumstances.
The expert accountant could not be required to pay for necessary assistance, toll charges, and traveling expenses, out of the reasonable compensation for his personal services any more than a doctor could be required to pay nurses' wages, drug bills, and hospital expenses out of his compensation, or a lawyer to pay filing fees, witness fees, and necessary traveling expenses out of the reasonable compensation for his services.
The plaintiff was required to do and perform whatever was necessary in rendering full income tax reports for the defendant, and, as the government had sought to collect from defendant a large amount of additional taxes, plaintiff was required to gather data, check the returns theretofore made, and the reports of the government agents, and meet the case made by the government by written objections, brief, and argument. Evidence that in performing such services it was necessary and customary to employ an assistant in checking data and figures in order to insure accuracy, and the incurring of expense for telegrams sent, long distance conversations had, and trips made in order to assemble all available data, was admissible and should have been admitted under the general allegations of the complaint, without the amendment. There was, therefore, no departure from the original cause of action, "the test of which is whether proof of the existence of additional facts will be required." 21 R. C. L. 583; Wabash R. Co. v. Campbell, 219 Ill. 312, 76 N.E. 346, 3 L. R. A. (N. S.) 1092; Allen v. Railway Co., 229 Pa. St. 97, 78 A. 34, 30 L. R. A. (N. S.) 1096, 140 Am. St. Rep. 714. The amendment but incorporated in the complaint immaterial matter, and was made merely because of the court's action in sustaining an objection to the proof under the original allegations of the complaint.
(2) Specifications numbered 2 and 3 are considered together by counsel for defendant and predicate error upon the court's action in permitting the amendment, and in refusing to permit defendant to plead further. These specifications are disposed of by what has been heretofore said. Further, defendant had knowledge of the claim of reimbursement for the expense of an assistant from the time of the delivery of the bill of particulars, more than 10 months prior to the trial; the defendant was, therefore, not taken by surprise. It does not appear that he did not meet the issues with all the evidence that could be produced...
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