D'Arcy v. Catherine Lead Co.

• Decision Date: 30 December 1910
• Citation: 133 S.W. 1191,155 Mo. App. 266
• Parties: D'ARCY v. CATHERINE LEAD CO.
• Court: Missouri Court of Appeals

133 S.W. 1191

155 Mo. A. 266

D'ARCY v. CATHERINE LEAD CO.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

On motion for Rehearing, February 7, 1911.

1. EVIDENCE (§ 550) — EXPERT TESTIMONY — QUESTIONS.

Experts should be confined to giving their opinion on hypothetical questions, and, though it is claimed that they heard all the testimony, they should not be allowed to give their opinion on what they have heard.

2. TRIAL (§ 256) — INSTRUCTIONS—NECESSITY OF REQUEST.

An instruction, correct as far as it goes, cannot be complained of for failure to touch a certain matter, in the absence of a request for instruction.

3. TRIAL (§ 235) — INSTRUCTIONS — EXPERT TESTIMONY — INDEPENDENT JUDGMENT OF JURORS.

The statement, in a requested instruction as to the testimony of experts, that the jury may exercise an independent judgment from their own knowledge and experience, is defective in not confining the jury, in the exercise of their independent judgment, apart from the opinions of experts, to judgment founded on the evidence in the case.

4. TRIAL (§ 261)—INSTRUCTIONS—REQUESTS— DUTY TO CORRECT.

It is not the duty of the court when requested to give an incorrect instruction to correct it and then give a proper one.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Edward D'Arcy against the Catherine Lead Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Carter, Collins, Jones & Barker, for appellant. Henderson, Marshall & Becker, for respondent.

REYNOLDS, P. J.

The respondent, plaintiff below, brought his action against defendant for services rendered by him as an attorney at law, in preparing abstracts, briefs, and arguments and orally arguing, in behalf of defendant, a certain case then pending in the Supreme Court of this state, the case being decided in that court in favor of his client, this defendant. There was no agreement as to the fee to be paid plaintiff, he averring that the reasonable value of his services was $10,000, and for that amount he demanded judgment. The answer, admitting the employment of plaintiff in the case named, and that he had rendered the services claimed in the Supreme Court, denies that they were of the reasonable value of $10,000. Defendant further avers that it had, prior to the trial of this case, tendered plaintiff $1,250 in full payment for his services, together with the costs then accrued, and that it is still willing to pay that amount and consents that judgment may be rendered accordingly. It will be noticed that there is no admission that the services were worth $1,250. The reply, admitting the tender and refusal of plaintiff to accept the amount, renews its demand for judgment for the full amount sued for. There was a trial before the court and jury, resulting in a verdict in favor of plaintiff for $3,875. From this, the defendant, after moving for a new trial and saving its exceptions to its being overruled, has appealed to this court. A number of witnesses, practicing attorneys, testified as to the value of the services rendered by plaintiff, the value of the property involved in the action in the Supreme Court being one of the elements on which the estimate of the value of the services was to be based, as also the importance to defendant of the point settled by the decision of the Supreme Court, and the amount of time, labor, and skill involved in attention to the case. In addition to testimony of the attorneys who testified as experts as to the value of the professional services, was that of two witnesses testifying as experts to the value of the property involved. One of them, a mining engineer, called by plaintiff, the other an attorney at law, called by defendant. At the conclusion of the trial, the court, at the instance of plaintiff, after instructing the jury as to the facts of plaintiff being a duly licensed attorney, and that the defendant is a corporation, and that plaintiff rendered legal services in the action referred to, told the jury that the only question for decision was the reasonable value of the services rendered by plaintiff in that case in the Supreme Court of this state, and that the plaintiff is entitled to recover from the defendant such sum as the jury may find and believe from the evidence would be a reasonable compensation to the plaintiff for such services.

The defendant asked three instructions as follows:

(1) "The court instructs you that the evidence given by attorneys as to the value of plaintiff's services does not preclude you from exercising your own knowledge upon the value of such services. It is your duty to weigh the testimony of the attorneys as to the value of plaintiff's services, if any, by reference to their nature, the time occupied in their performance, and other attending circumstances, and you may apply to it your own experience and knowledge, if any, of the character of such services."

(2) "The court instructs the jury that the testimony of expert witnesses is only advisory; that they are not required to surrender their judgment and to give a controlling influence to the opinion of expert witnesses, but may exercise an independent judgment from their own knowledge and experience."

(3) "The court instructs the jury that the opinion evidence given in this case as to the reasonable value of the plaintiff's services is advisory only; that is to say, you are not bound to find in accordance with such opinion evidence, in the sense in which you are bound by the testimony of witnesses as to facts testified to by them. It is, however, your duty to watch and consider the opinion evidence given by the witnesses in this case, and to attach such value and weight thereto as you may believe and find from all the other facts and circumstances shown in evidence it is fairly and reasonably entitled to; and in arriving at your verdict in this case you should not only consider...