D'Arcy v. Catherine Lead Company

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

133 S.W. 1191

155 Mo.App. 266

EDWARD D'ARCY, Respondent, v. CATHERINE LEAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 30, 1910

Argued and Submitted November 18, 1910.

Opinion on Motion for Rehearing Filed February 7, 1911.

Rehearing Denied 155 Mo.App. 266 at 274.

Appeal from St. Louis City Circuit Court.--Hon. Wm. M. Kinsey Judge.

AFFIRMED.

Judgment affirmed.

Carter Collins, Jones & Barker for appellant.

(1) There being no express contract covering the rendition of the services in question, the plaintiff's recovery is limited to the reasonable value of the services rendered. 4 Cyc. 994, note 52, and cases cited; 3 Am. and Eng. Ency., 419 (2 Ed.); Kingsbury v. Joseph, 94 Mo.App. 298; Brownregg v. Massengale, 97 Mo.App. 190; Wright v. Baldwin, 51 Mo. 269; Rose v. Spies, 44 Mo. 20; Dempsey v. Wells, 109 Mo.App. 470. (2) In determining the reasonable value of such services, the time and labor consumed, the responsibility assumed, the character of the litigation, the amount involved, and the benefits derived, are to be considered. 4 Cyc. 994, note 52, and cases cited; 3 Am. and Eng. Enc. (2 Ed.), 420; Trimble v. Railroad, 201 Mo. 372; Gorman v. Banigan, 46 A. 38; Weeks on Attorneys, sec. 343. (3) The court erred in permitting the plaintiff's experts to answer plaintiff's hypothetical question because said question was based upon false, erroneous and misleading assumptions and omissions. Russ v. Wabash, 112 Mo. 45; State v. Dunn, 179 Mo. 95; State v. Brown, 181 Mo. 192; Root v. Railroad, 195 Mo. 348; King v. Gilson, 206 Mo. 264; Fullerton v. Fordyce, 144 Mo. 519; Culbertson v. Railroad, 140 Mo. 35; State v. Palmer, 161 Mo. 152; Smart v. Kansas City, 91 Mo.App. 586; Benjamin v. Railroad, 50 Mo.App. 602; Goss v. Railroad, 50 Mo.App. 614; Riley v. Sparks, 52 Mo.App. 572; Hicks v. Railroad, 124 Mo. 115; Mammerberg v. Railroad, 62 Mo.App. 563; Marshall v. McKelvery, 55 Mo.App. 240; Gas Light Co. v. Insurance Co., 33 Mo.App. 348. (4) The court erred in refusing on crossexamination to permit plaintiff's experts to give their opinion, based on all the testimony. State v. Privett, 175 Mo. 207; State v. Klinger, 46 Mo. 224; State v. Wright, 134 Mo. 404; State v. Welsor, 117 Mo. 570; Benjamin v. Railroad, 50 Mo.App. 602; Riley v. Sparks, 52 Mo.App. 572; State v. Soper, 148 Mo. 217; Tingley v. Cowgill, 48 Mo. 291; Brown v. Huffard, 69 Mo. 305; Gas Light Co. v. Ins. Co., 33 Mo.App. 348; Feed and Coal Co. v. Railroad, 129 Mo.App. 498; Wigmore on Evidence, 681, 682; Benjamin v. Railroad, 133 Mo. 289; Strauss v. Railroad, 86 Mo. 421; Fry v. Estes, 52 Mo.App. 1; 17 Cyc. 253. (5) The court erred in refusing the second instruction offered by the defendant. This error was not cured by the subsequent instruction relating to expert testimony, because such subsequent instruction instructed the jury only with reference to the opinion evidence as to the value of the plaintiff's services. The defendant was entitled to this instruction to inform the jury of its province relative to the expert testimony of witness Johnson on land values and the value of the ore body on the property involved in the Collier litigation. St. Louis v. Kansas City, 110 Mo.App. 653; Resletsky v. Railroad, 106 Mo.App. 382; Wiley v. Gas Co., 132 Mo.App. 380; Hoyberg v. Henske, 153 Mo. 63; Hull v. St. Louis, 138 Mo. 618; Cosgrove v. Burton, 97 Mo.App. 698; Markey v. Railroad, 185 Mo. 348; King v. Gilson, 191 Mo. 307.

Henderson, Marshall & Becker for respondent.

The court did not err in not permitting appellant to examine the experts as to their opinions of the value of the plaintiff's service based upon what they had heard in the court of the facts as detailed by the other witnesses, they stating that they had been in court during the whole trial of the case. Livery Co. v. Railroad, 105 Mo.App. 560; State v. Privitt, 175 Mo. 207; Glasgow v. Railroad, 191 Mo. 361; Bragg v. St. Ry., 192 Mo. 343.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

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 $ 1250 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 $ 1250. The reply, admitting the tender and refusal of plaintiff to accept the amount, renews his 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 $ 3875. 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 the opinion evidence given in the case as to the value of plaintiff's services, but also all the facts and circumstances attending the services rendered by him, as shown by the evidence in this case."

In lieu of these three instructions the court of its own motion gave this instruction:

"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, but may exercise an independent judgment as to the value of such services, based upon the evidence in the case. It is, however, your duty to weight and consider the opinion evidence given by the expert witnesses, 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 the opinion evidence given in the case, as to the value of the plaintiff's services, but also all the facts and circumstances attending such services."

In addition...