Frye v. Ferguson
| Decision Date | 19 December 1894 |
| Citation | 61 N.W. 161,6 S.D. 392 |
| Parties | FRYE et al., Plaintiff and respondent, v. FERGUSON, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Fall River County, S.D.
Affirmed
G. M. Cleveland
Attorneys for appellant.
Anderson & Anderson
Attorneys for respondents.
Opinion filed Dec. 19, 1894
In the circuit court for Fall River county, upon trial before a jury, judgment was rendered in favor of respondents against appellant, who appeals from the same. Error is assigned as follows:
“(1) The court erred in admitting the evidence of William H. Woodward as to the value of legal services sued for, the said evidence being incompetent.
(2) The court erred in failing to reduce his instructions to writing, and in failing to send said instructions, so reduced to writing, to the jury on their retirement.
(3) The court erred in failing to instruct the jury that the burden of proof rested upon the plaintiff.
(4) The court erred in refusing to grant a new trial on newly-discovered evidence, as set forth in the affidavits in support of a motion for a new trial herein.
(5) The verdict is not sustained by the evidence, and is against the clear preponderance of the evidence.” Woodward, who testified, with others, as to the value of plaintiffs’ services as attorneys, to recover for which this action was brought, said that he was a practicing attorney in Lincoln, Neb., was county attorney, and had practiced his profession for 20 years; that he was acquainted with the value of such professional services as confessedly constituted the ground of respondents’ claim or cause of action, and then testified as to their value. His evidence was objected to on the ground of his incompetency, it not being shown that he had any knowledge of the value of such legal services in South Dakota, or Fall River county. We think the witness was competent. There was no attempt to show that such services were worth less or more in South Dakota than in Nebraska, or that, for any reason, their value should be estimated upon a different basis or by a different rule. If, as was shown on his cross-examination, he had never practiced in Fall River county or in the state of South Dakota, but based his estimate upon his knowledge of the value of such services in Lincoln, Neb., this might affect the weight which the jury would give to his testimony, but it did not render him an incompetent witness, there being nothing, as before stated, to indicate to the court that different conditions existed in the two places, not very distant from each other, that would affect the value of such services. See, Enos v. St. Paul Fire & Marine Ins, Co., 4 S.D. 639, 57 N.W. 919, 920, 46 AmStRep 796 (1894); Gleckler v. Slavens, 5 S.D. 364, 59 N.W. 323 (1894); Johnson v. Gilmore, 6 S.D. 276, 60 N.W. 1070 (1894).
The second error assigned is that “the court erred in failing to reduce his instructions to writing, and in failing to send such instructions, so reduced to writing, to the jury on their retirement.” The abstract shows that the instructions were given orally. and as given were taken down by the official stenographer, and that no objection was made by either party then or subsequently. Under such circumstances the trial court had a right to understand that both parties were satisfied with this method, and waived a strict pursuance of the statute, if this was not. Under precisely such conditions the territorial supreme court, in Stamm v. Coates, 4 Dak. 69, 22 N.W. 593, said:
“We are clearly of the opinion that the defendant, by sitting by and allowing the court to instruct orally without objection, waived any right to except to this method of giving instructions, and consequently to the failure to give the charge to the jury in writing, to be by them taken in their retirement.”
We are entirely satisfied with this conclusion. It is fully sustained in Head v. Langworthy, 15 Iowa, 236, in...
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