Expansion Gold Min. & Leasing Co. v. Campbell

• Decision Date: 02 January 1917
• Docket Number: 8748.
• Citation: Expansion Gold Min. & Leasing Co. v. Campbell, 163 P. 968, 62 Colo. 410 (Colo. 1917)
• Parties: EXPANSION GOLD MINING & LEASING CO. v. GAMPBELL.
• Court: Colorado Supreme Court

163 P. 968

62 Colo. 410

EXPANSION GOLD MINING & LEASING CO. v. GAMPBELL.

No. 8748.

Supreme Court of Colorado

January 2, 1917

Rehearing Denied en Banc April 2, 1917.

Error to District Court, Pueblo County; C. S. Essex, Judge.

Action by David M. Campbell against the Expansion Gold Mining &amp Leasing Company. Judgment for the plaintiff, and defendant brings error. Affirmed.

Rehearing denied en banc; White, C.J., not participating.

Adams & Gast, of Pueblo, for plaintiff in error.

James A. Park and W. J. Kerr, both of Pueblo, for defendant in error.

HILL J.

This action was instituted by the defendant in error (hereafter called the plaintiff) to recover $8,000 from the plaintiff in error (hereafter called the defendant) for services rendered as an attorney at law. The complaint contains two counts. The first was for drafting the defendant's articles of incorporation and assisting in its organization etc. The second was for acting as its general counsel for a term of years and in attending to certain litigation, etc account being thus employed, etc. The answer denies everything, and alleges that, if any services were rendered, they had been paid for, etc. The verdict of the jury was a general one in favor of the plaintiff in the sum of $3,100.

Numerous assignments of error pertain to the defendant's cross-examination of plaintiff's witnesses. It is unnecessary to explain these in detail; they pertain to questions largely in the discretion of the trial court. We find no abuse of discretion shown.

The defendant's objections to the form of the questions to plaintiff's expert witnesses upon the value of the services rendered are not well taken. While in a sense they were not hypothetical, yet in another sense they were; for, by referring to the plaintiff's testimony or the services rendered as testified to by him, they made the assumed truth thereof the basis of the questions. In Rogers on Expert Testimony (2d Ed.) § 29, it is said:

'It is not always necessary that a hypothetical question should be asked in a formal manner.'

In section 46 the author also states:

'His [an expert's] opinion, to be admissible, must be founded either on his own personal knowledge of the facts, upon facts testified to in court, or else upon an hypothetical question.'

In McCollum v. Seward, 62 N.Y. 316, the following question was held proper:

'Assuming that the services rendered were as described by the plaintiff, what were they worth?'

This is the line of questions propounded in this case. While there may have been some slight deviations, as stated, we do not think anything was admitted of sufficient importance to prejudice the interest of the defendant.

While it is true that Attorney Koperlik admitted that he had not heard all of Mr. Campbell's cross-examination, when permitted to give his opinion concerning the value of the services rendered, we do not think that his (Campbell's) cross-examination in any way modified his previous testimony concerning the services rendered by him, hence could not have changed Mr. Koperlik's testimony. Other attorneys, after hearing all of Mr. Campbell's cross-examination, placed a higher value on his services than Mr. Koperlik placed on them. The jury, at least to a certain extent, disregarded the testimony of all of them, for the reason that it awarded the plaintiff a much smaller sum than in the opinion of any of these attorneys he was entitled to. In such circumstances we cannot conceive that the defendant was in any manner prejudiced upon account of Mr. Koperlik having failed to hear all of Mr. Campbell's cross-examination. Swanson v. Mellen, 66 Minn. 486, 69 N.W. 620; Kliegel v. Aitken, 94 Wis. 432, 69 N.W. 67, 35 L.R.A. 249, 59 Am.St.Rep. 901; Hand v. Brookline, 126 Mass. 324.

The plaintiff was allowed to offer parol testimony concerning the substance of a resolution passed at a meeting of the board of directors of defendant company. In the circumstances of this case we find no error in this respect. Mr. Campbell testified to his searching for the minute book; also that he had seen these minutes at one time, and that later when he tried to find them the officers denied they had any such or any except those written in a certain book, which was not properly identified by any one.

Under the ruling in the Union Gold Mining Company v. Rocky Mountain National Bank, 2 Colo. 565, the purported minute book offered in evidence by the defendant was properly refused for lack of identification of that portion sought to be used as evidence at the time it was offered.

We cannot agree that the court's refusal to admit the stock certificate stub book was prejudicial error. There was no testimony that Mr. Campbell had been consulted in regard to issuing the stock or that he had anything to do with it. We do not think these facts could have had any bearing upon the question of whether he was or was not employed by the defendant company or pertain to the amount of his compensation.

It is claimed that the court erred in admitting evidence as to items not included in the plaintiff's bill of particulars. Counsel admit that this bill is not in the record. They say that at the request of the plaintiff the lower court struck it from the record on error because it had not been offered in evidence, for which reason it could not be included in the record here. No assignment of error is predicated upon this ruling, and we are not at liberty to consider the contents of something which is not in the record.

Seventeen assignments of error are based upon alleged improper remarks of counsel for plaintiff in argument to the jury and claimed to have been tolerated by the court. A great deal of this grows out of remarks made concerning defendant's counsel, in answer to his argument in his attack upon the plaintiff. 'This true the plaintiff was an attorney. He had testified and his testimony and actions throughout the history of the transaction in connection therewith were matters to be commented on in the argument to the jury, but, according to the record, as approved by the trial court, counsel for the defendant had gone outside of it in a personal attack upon plaintiff. After objections were interposed he persisted in this line of argument. When objections were against made the court said:

'This is argument of counsel and is outside of the record, but if counsel persists the plaintiff or his counsel will have an opportunity to answer it.'

Counsel for defendant still persisted in similar argument, and counsel for the plaintiff in closing likewise went outside of the record in answering this argument, and in their eulogy of the plaintiff and sarcasm toward and abuse of defendant's counsel. Had these attacks been against the defendant instead of its counsel, the question would be serious; but as they were otherwise, and in answer to those of plaintiff's counsel, after he had persisted in his improper line, when previously warned they would be allowed this privilege, although all was improper, was cannot agree, when the nature of the case is considered, that the defendant's rights were prejudiced thereby, especially in view of the trial court's opinion to the contrary.

Plaintiff's counsel stated to the jury that a Mr. McDavid had made $200,000 out of the defendant company, and that a Mr. Knight had made $150,000. He also said that Mr. McDavid had been charged and was guilty of padding the defendant's pay roll. Objections were made to these...