Davis v. School District of City of South Omaha

• Decision Date: 25 June 1909
• Docket Number: 15,691
• Citation: 122 N.W. 38,84 Neb. 858
• Parties: LEONARD A. DAVIS, APPELLANT, v. SCHOOL DISTRICT OF THE CITY OF SOUTH OMAHA, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 38

84 Neb. 858

LEONARD A. DAVIS, APPELLANT, v. SCHOOL DISTRICT OF THE CITY OF SOUTH OMAHA, APPELLEE

No. 15,691

Supreme Court of Nebraska

June 25, 1909

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

T. J Mahoney and J. A. C. Kennedy, for appellant.

A. H Murdock and A. C. Pancoast, contra.

OPINION

DEAN, J.

Leonard A. Davis, plaintiff and appellant, is an architect who was employed in that capacity by the board of education of the school district of South Omaha to prepare plans and specifications for the construction of a high school building for the defendant school district upon what is known as the "Hoctor site." In pursuance of his employment, he performed the service, and, the defendant refusing to pay the sum demanded by him, this suit was begun. The plaintiff alleges that the rate of compensation which he was to receive was not fixed other than that he was to be paid the usual, reasonable and customary compensation for such services, which is 3 1/2 per cent. of the cost of labor and material in the construction of the proposed building, and that the cost of constructing complete such a high school building as that contemplated by the plans and specifications prepared by him, including all labor and material necessary for its occupancy, would have been not less than $ 160,000, and that his compensation upon the basis of 3 1/2 per cent. of the above sum is $ 5,600, which he maintains is the usual, reasonable and customary fee for like services. He admitted having received $ 1,900 from the school district, but alleged there was still due to him a balance of $ 3,700 for his services, for which he prayed judgment. The question of services as a supervising architect during the course of construction does not enter into the consideration of this case. The answer denied generally and specifically the allegations of the petition, and prayed for a judgment of dismissal. Issues were joined, and upon the trial the plaintiff was awarded a verdict for $ 1,127.48, upon which judgment was rendered. The defendant took no exceptions to the judgment, but the plaintiff, being dissatisfied with the amount of the recovery, brings the cause to this court for review.

Upon the question of the probable cost of the construction of a high school building to be erected in pursuance of the plans and specifications furnished by the plaintiff, the record discloses that the allegations of the petition were fairly supported by the testimony. Upon the question of compensation, the plaintiff's testimony was supported by that of four or five skilled architects called by him as expert witnesses, and who testified, in answer to hypothetical questions and from an inspection of the exhibits, that the customary, usual and reasonable value of an architect's services such as those rendered by the plaintiff is 3 1/2 per cent. of the cost of the entire building finished, complete and ready for occupancy, and that this rate is general throughout the country. The testimony of some of the expert witnesses is to the effect that this fee is prescribed by the "American Institute of Architects," one or more of them being active members of that organization.

The defendant introduced no direct evidence to contradict the testimony offered on the part of the plaintiff upon the question of the reasonableness of the rate of compensation, and the latter maintains that for this reason, among others, the verdict of the jury cannot be sustained under any system of computation that may be adopted, except upon the theory that the jury limited the amount of the recovery to compensation for preliminary sketches and drawings, and contends that, if this was the theory of the jury, no legal justification therefor can be found in the record. The plaintiff also charges that the verdict may be accounted for because of prejudice and passion on the part of the jury.

Counsel for plaintiff argue that, in view of the evidence and the instructions, the jury should have merely confined their attention to the task of computing 3 1/2 per cent. upon $ 160,000 and bringing in a verdict for that sum in favor of their client. They complain and charge that instead of doing this, the jury arbitrarily and in defiance of the undisputed testimony returned a verdict for less than 1 per cent. upon that sum. They concede that expert or opinion evidence is not always binding upon the jury, because there are many instances in which there are no fixed rules by which the value of services may be determined, concerning which experts are called upon to testify, such as the professional services of attorneys, but they contend that it is otherwise with reference to the professional services of an architect, the value of which they argue may be almost as certainly established and computed as the price of the most staple articles of commerce, and that for this reason, among others, the jury in the present case were bound by the expert evidence of skilled architects with reference to the value of the services of a brother architect, the same as it would be in a case involving the establishment of the usual and customary wage of brick layers, carpenters and trades workers generally, or "the going wage" of farm hands, where the testimony is all identical upon a given point and undisputed. They insist that the evidence upon this point submitted by them in behalf of their client's cause may not properly be designated opinion testimony.

We have examined the questions raised by plaintiff's counsel and the principles of law applicable thereto as presented by the record before us, and are unable to adopt their reasoning or to apply the distinctions to the evidence for which they contend. To do so would be to ignore and to set at naught the functions of the jurors in the performance of a solemn duty imposed upon them by the law, by their consciences, and by their oaths. All of the facts in the case, including not only those which may properly be denominated the strictly professional services of the plaintiff, but also the work that was performed by three or four of his assistants and subordinates who were in his employ, were presented to the jury in detail by the plaintiff's testimony upon the direct and the cross-examination, and we are not prepared to say that the jury were not thereby fully...