Gordon v. Conley

• Decision Date: 07 November 1910
• Citation: 78 A. 365,107 Me. 286
• Parties: GORDON v. CONLEY et al. O'NEIL v. SAME. TWITCHELL v. SAME.
• Court: Maine Supreme Court

78 A. 365

107 Me. 286

GORDON

v. CONLEY et al.

O'NEIL

v. SAME.

TWITCHELL

v. SAME.

Supreme Judicial Court of Maine.

Nov. 7, 1910.

Exceptions from Supreme Judicial Court, Cumberland County.

Consolidated actions by Seth C. Gordon, James B. O'Neil, and Herbert F. Twitched against Rose A. Conley and others. Verdicts for plaintiffs, and the mentioned defendant moves for a new trial in each action, and brings exceptions. Overruled.

Three actions of assumpsit on accounts annexed, severally brought in the superior court, Cumberland county, by the plaintiffs, physicians and surgeons, against the defendant, to recover for professional services as expert witnesses for the defendant in an action brought by her against the Grand Trunk Railway to recover for personal injuries. Plea in each action, the general issue, with a brief statement, in each action, alleging "that the claim upon which the plaintiff now sues her in this action has been determined, adjudged, and settled by our Supreme Court, at a term thereof, which was begun and held at Portland in said county, on the second Tuesday of January, A. D. 1909, by a decree of the Honorable Henry C. Peabody, associate justice of said court, who presided at said term of said court, and which decree was handed down by the said honorable justice on the 25th day of January, A. D. 1909. and is now on file with the clerk of said court, and the defendant now is, and always has been, ready to pay and settle said claim in accordance with said decree." The three actions were tried together. Verdict for Dr. Gordon for $112.50. Verdict for same sum for Dr. O'Neil, and verdict for Dr. Twitchell for $150. The defendant filed a general motion i.i each action for a new trial and also excepted to several rulings of the presiding justice.

The case is stated in the opinion.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Joseph B. Reed, for plaintiffs.

Henry J. Conley, for defendants.

SPEAR, J. These were three actions of assumpsit on accounts annexed, severally brought by Seth C. Gordon, James B. O'Neil, and Herbert F. Twitchell, all of Portland, in said county of Cumberland, physicians and surgeons, against Rose A. Conley and trustees, to recover for professional services as expert witnesses three days each in the case of Dr. Gordon and Dr. O'Neil, and four days in the case of Dr. Twitchell; they having, at the request of Rose A. Conley and her attorney, Henry J. Conley, made a physical examination of the said Rose A. Conley, and at the request of her said attorney attended court and gave evidence of their opinion relative to her condition, and the causes that might have produced it, in an action for personal injuries brought by said Rose A. Conley against the Grand Trunk Railway, tried at the January term of the Supreme Judicial Court for Cumberland county, A. D. 1908.

These three cases present substantially the same conditions of facts, and were tried together at the December term of the superior court for Cumberland county, A. D. 1909.

The jury rendered a verdict for the plaintiffs Seth C. Gordon and James B. O'Neil each the sum of $112.50, and for the plaintiff Herbert F. Twitchell the sum of $150. The defendant introduced no testimony. The evidence conclusively shows that the plaintiffs were employed by the defendant or her attorneys to make an examination of her physical condition for the purpose of enabling them to qualify as medical expert witnesses in her case about to be tried in the Supreme Judicial Court against the Grand Trunk Railway for injury alleged to have been received by her through the negligence of the railway. While Dr. O'Neil was her regular attending physician, he nevertheless was used as an expert upon the witness stand. The evidence of Judge Poster, who was counsel for the defendant in her case against the railway, is so conclusive upon the nature of the employment of the three physicians in case at bar, their required attendance at court during the trial and the time they spent at court, that the verdict of the jury must be regarded as fully warranted upon this issue if the law permits it to stand. The plaintiffs were not summoned, but appeared voluntarily at the request of the defendant's counsel, but without any agreement as to the compensation they were to receive for their services. Under these conditions, the plaintiffs contend that they were entitled to reasonable compensation instead of the regular witness fee.

But the defendant asserts, admitting the facts as claimed by the plaintiff, that they are entitled to only the witness fees provided by law. The defendant's own statement of her contention is this: The defendant claims that the compensation of all witnesses, including expert witnesses, is established by section 13 of chapter 117 of the Revised Statutes as amended by chapter 66 of the Public Laws of 1907, which reads as follows, to wit: "Witnesses in the Supreme Judicial or Superior Courts and in the probate courts, and before referees, auditors or commissioners specially appointed to take testimony shall receive one dollar and fifty cents, or before county commissioner, one dollar for each day's attendance, and six cents for each mile travel going out or returning home; and before a justice of the peace, a judge of a municipal or police court, fifty cents a day for attendance, and for travel the same as at the court aforesaid."

"As there is no other provision made in our statutes for the payment of witnesses, the courts nor the law cannot distinguish between different classes of witnesses, between 'expert' testimony, so called, and that which is not expert, but must pay them all the same fee, which is the fee established by law."

It will be observed that the question raised is not whether an expert witness can be summoned into court in the regular way, and be required to give in evidence all the knowledge he may have acquired as an expert upon a particular subject under investigation, for the regular witness fee, but whether having been employed by a party to give special attention to the investigation of a matter out of court, and then to appear in court, not only to testify as an expert witness, but to remain in court for a specific length of time with loss of regular occupation, not by order of the court, but by request of the party employing, a witness is entitled to receive reasonable compensation beyond the regular witness fee for such services. If a party saw fit to summon an expert witness to testify in court without any knowledge as to what he might say, whether the witness would be required for the usual fee to give all the expert knowledge he might have upon the subject under investigation does not now arise. That is not the case before us. In the case at bar the plaintiffs, without summons, came into court, not only to testify, but by special request remained in court three days in order to listen to the experts on the other side of the case advise counsel, and testify in rebuttal, if necessary, while a witness under...