Cosgrove v. Leonard

• Decision Date: 02 June 1896
• Citation: 33 S.W. 777,134 Mo. 419
• Parties: Cosgrove et al., Appellants, v. Leonard et al
• Court: Missouri Supreme Court

33 S.W. 777

134 Mo. 419

Cosgrove et al., Appellants, v. Leonard et al

Supreme Court of Missouri, Second Division

June 2, 1896

Appeal from Cooper Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

Geo. P B. Jackson for appellants.

(1) The evidence of the value of the services of Cosgrove & Johnston was all one way; there was no conflict whatever as to their value. The only question in issue before the jury was whether they had been employed. The jury found that there was an employment, and there being no conflict of testimony about the value of the services, the jury should have found that plaintiffs were entitled to the full amount sued for. The conclusion must in the very nature of things depend on the testimony of experts and the jury should have accepted and acted upon their testimony. Rogers on Expert Testimony [2 Ed.], 490; Getchell v. Hill, 21 Minn. 464; Wood v. Barker, 49 Mich. 295. (2) The verdict was a compromise. The evidence showed that plaintiffs were entitled to their entire claim or nothing and the jury had no right to disregard the evidence and bring in a verdict for about one half of the amount. The damages were, under the issues in this case, liquidated. 2 Thompson on Trials, sec. 2606; St. Louis Brewery Co. v. Bodeman, 12 Mo.App. 537; Todd v. Boone County, 8 Mo. 436. The verdict is not supported by the evidence of either the plaintiffs or the defendants. (3) When there is conflict of testimony, it is without doubt the province of the jury to decide between the conflicting statements of the witnesses, and determine which if either, they will believe, as was held in Head v Hargrave, 105 U.S. 45; Gibsons v. Railroad, 40 Mo.App. 146; Ross v. Spies, 44 Mo. 20; City of Kansas v. Street, 36 Mo.App. 666. (4) The St. Louis court of appeals in Fry v. Estes, 52 Mo.App. 1, held that the value of legal services could not be established by the opinions of witnesses who were not shown to be attorneys at law, or in any way qualified to speak on the subject, and reversed the judgment of the lower court because it was not shown that the witnesses were attorneys. If witnesses, who are not shown to be qualified to judge of the value of professional services, can not testify, by what rule of logic can jurors equally disqualified and who are sworn to try the case according to the law and the evidence and a true deliverance make, substitute their own judgments for that of the witnesses? These jurors would not have been competent witnesses to prove or disprove the value of the services sued for. Yet they did set up their individual judgments against all of the evidence and the admissions of the defendants in defiance of the evidence, to the effect that they knew more about the value of the professional services sued for than all the attorneys who were sworn in the case.

Wm. S. Shirk for respondents.

The evidence of the attorneys, as to the value of the appellants' services, was not the only evidence which the jury had the right to consider, in arriving at a verdict. But if it had been, the jury were not bound by such evidence, but had the right to exercise their own judgment, knowledge, and experience as to the value of such services, and had the right also to give to such expert evidence such weight, force, and credibility as they saw fit to do. City of Kansas v. Butterfield, 89 Mo. 646; Rose v. Spies, 44 Mo. 20; City of Kansas v. Street, 36 Mo.App. 666; St. Louis v. Ranken, 95 Mo. 189; Tel. Co. v. Light Co., 46 Mo.App. 120; Congress, etc., Co. v. Edgar, 99 U.S. 645; Schwinger v. Raymond, 105 N.Y. 648; Head v. Hargrave, 105 U.S. 45; Saunders v. State, 94 Ind. 147; Anthony v. Stinson, 4 Kan. 212; Patterson v. Boston, 20 Pick. 166; Murdock v. Summer, 22 Pick. 158. "Expert testimony is at most advisory, and its weight is determined by the experience and knowledge, however acquired, which the triers of the fact have, of the subject-matter under consideration." Rombauer, Judge, in Tel. Co. v. Light Co., 46 Mo.App. 142. "Testimony of experts as to value of professional services, need not control a jury in determining the amount of their verdict (Head v. Hargrave, 105 U.S. 45), such testimony must be considered and weighed by the jury and in the light of such testimony they come to a conclusion by an exercise of their own judgment, experience, and knowledge." City of Kansas v. Street, 36 Mo.App. 668. "Several members of the bar were sworn as to what would be a reasonable compensation, and they differed as to amounts, but all placed it above the verdict of the jury. * * * The jury are told that the opinions of witnesses examined as experts are not conclusive but that they are to be considered in connection with the other evidence. This placed the whole testimony, and the weight of testimony before them in an unexceptionable form." Rose v. Spies, 44 Mo. 22, 23. "In like manner in this case, the jurors might have taken the facts testified to by the attorneys, as to the characten, extent, and value of the professional services rendered and then come to a different conclusion." Justice Field, Head v. Hargrave, supra.

Division Two: Burgess, J. Gantt, P. J., concurs. Sherwood, J., dissents. In Banc: Barclay (in the result), Macfarlane, and Robinson, JJ., concurring with Burgess, J., therein. Brace, C. J., and Gantt, P. J., dissenting.

OPINION

In Banc.

DIVISION TWO.

Burgess J.

This is an action for services rendered defendants by Cosgrove & Johnston, a law firm composed of John Cosgrove and James H. Johnston. Plaintiffs sue for the sum of $ 4,400 for legal services rendered defendants at their request, the sum of $ 340.15 for moneys, paid out and expended in defraying traveling and other necessary expenses, in and about defendants' business, less $ 142.03 with which they credit defendants. The answer is a general denial.

The case was tried to a jury who rendered a verdict in favor of plaintiffs for the sum of $ 2,368.03.

In due time plaintiffs filed their motion to set aside the verdict and for a new trial, assigning, among others, the following grounds therefor:

"1. For the reason that the verdict is against the evidence, against the weight of the evidence, and against the law under the evidence.

"2. The verdict is for the wrong amount."

"9. The verdict of the jury was not supported by any evidence in the case."

The motion was overruled and plaintiffs appealed.

The services sued for were rendered in a suit brought by the firm of Cosgrove & Johnston, attorneys at law, in connection with Messrs. Draffen and Williams, also lawyers, for defendants against the New York, Lake Erie & Western Railway Company for $ 50,000 damages, sustained by defendants in this suit, for injuries to a herd of cattle while in transit over said railroad in consequence of its negligence as common carrier.

The suit was brought in the circuit court of Saline county. A change of forum was subsequently granted to the United States circuit court for the western district of Missouri, at Kansas City. There a trial was had which resulted in a verdict in favor of defendants herein against the company for $ 26,983.60.

The verdict was thereafter set aside on motion of said company and by agreement of parties the venue was changed to the central division of the western district of Missouri of said United States court, where another trial was had resulting in a verdict for defendants herein in the sum of $ 55,880. The case was then appealed to the supreme court of the United States where the judgment was affirmed for...