Herfurth v. Horine
| Decision Date | 04 November 1936 |
| Citation | 266 Ky. 19 |
| Parties | Herfurth et al. v. Horine. |
| Court | United States State Supreme Court — District of Kentucky |
1. Attorney and Client. — Relation of attorney and client embodies all essential elements of principal and agent, but office of attorney is more exacting than that of agent, since he is also officer of the court.
2. Attorney and Client. — Attorney is agent of client, and when under general employment attorney takes such steps as are usually taken in such action, client, in absence of collusion, fraud, or other inequitable conduct between attorney and opposing party, will be bound by acts of attorney.
3. Attorney and Client. — Attorney employed to secure particular end has implied authority to take necessary steps to its proper accomplishment and may incur such expenses as are necessary and proper to carry out object of employment.
4. Attorney and Client. — Client cannot escape consequences of attorney's act by showing that attorney's authority was limited by instruction not communicated to opposing party or counsel.
5. Attorney and Client. — Generally attorney has implied authority to do anything necessarily incidental to discharge of purposes for which he was retained either in or out of court.
6. Attorney and Client. — Under ordinary contract of employment, attorney has implied power to incur in behalf of client reasonable expenses in conducting client's case, such as expense for expert witnesses.
7. Principal and Agent. — Principal is bound by acts of agent within apparent scope of authority conferred on him, even though authority may be actually limited, if person dealing with agent is ignorant of limitation.
8. Evidence. — It is common knowledge that in contesting will of testator, who left very large estate, on ground testator did not have mental capacity, eminent physicians are usually called as expert witnesses.
9. Attorney and Client. — Clients who contested will, involving large estate, on ground that testator was mentally incapable, were liable for reasonable value of services of expert medical witnesses employed by their attorney, irrespective of any private agreement between client and attorney as to expenses of suit.
10. Attorney and Client. — In action by physician against clients of attorney who had employed him as expert witness in suit contesting will because of testator's lack of mental capacity, court did not err in excluding from jury evidence of clients concerning terms of contract between attorney and clients in absence of showing that physician had any notice of any limitation on authority of attorney to act for clients.
Appeal from Jefferson Circuit Court.
L.D. GREENE and J.J. SAVAGE for appellants.
R. RUTHENBURG for appellee.
OPINION OF THE COURT BY CREAL, COMMISSIONER.Affirming.
Dr. Emmet F. Horine has recovered judgment against Mrs. Ella Herfurth and the executors of Mrs. Nora Moore for $1,350 for services rendered as a medical expert in a suit contesting the will of the late James H. Whalen, in which Mrs. Herfurth and Mrs. Moore were plaintiffs. Mrs. Herfurth and the executors are appealing.
The evidence of Dr. Horine, which is in accord with the allegations of his petition, is to the effect that he was employed by Mrs. Herfurth and Mrs. Moore by and through their attorney and agent, Mr. Frank Benton of Newport, Ky. As we gather from the record, mental incapacity of the testator was the ground of attack on the will, and since Dr. Horine had examined and treated Mr. Whalen a number of times in the latter years of his life and was acquainted with his condition a short time before the will was executed, Mr. Benton asked him for a history of the case, and his opinion concerning the testator's capacity to make a will. Dr. Horine testified that Mr. Benton seemed favorably impressed with the information and opinion given and indicated that he would be called as a witness, and requested that in the meantime he make a research of literature bearing on the medical phases and report with reference thereto; that he inferred this to mean that he was employed as a medical expert to assist the attorney in the case; and this was later confirmed in a letter from Mr. Benton asking for an opinion as to the effect upon the mind of diseases shown by the death certificate to have been the cause of Mr. Whalen's death. This letter was introduced in evidence and in part reads:
"As stated to you, my clients, Mrs. Nora Moore and Mrs. Ella Herfurth of this city, who are the only heirs at law of Colonel James H. Whalen, and who are contesting his will, desire to employ you as an expert."
Dr. Horine accepted the employment, and as shown by his evidence, spent much time in research and study of authorities and in consultation with the attorneys for plaintiffs and testified as a medical expert on the trial. He was fully corroborated by a number of physicians and other witnesses concerning the nature and value of his services.
By answer Mrs. Moore and Mrs. Herfurth entered a general denial to the allegations of Dr. Horine's petition, but before the case came to trial Mrs. Moore died and by appropriate orders her executors were made parties defendant. Mrs. Herfurth was the only witness called in behalf of appellants. She testified in substance that she and her sister employed Mr. Benton to institute and prosecute the suit contesting the will, and that he had general charge of the case; that they paid Mr. Benton a cash fee and agreed to pay him a further contingent fee based on the amount that might be recovered; that under the agreement Benton was to furnish all witnesses and any additional attorneys he might desire; that she and her sister had nothing to do with the employment of Dr. Horine and other medical experts and knew nothing of their employment and did not learn that Dr. Horine would testify until the case was called for trial, although Mr. Benton had told her he had a number of doctors who were going to testify.
The court withdrew from the consideration of the jury all evidence of Mrs. Herfurth concerning the terms of the contract with Mr. Benton because (1) it had not been pleaded and (2) because any conditions or restrictions concerning the employing of an expert witness had not been communicated to Dr. Horine.
At the close of all the evidence the court overruled appellants' motion for a peremptory instruction in their favor, but sustained a motion of appellee for a directed verdict and instructed the jury to find for him such sum as they might believe from the evidence represented the fair and reasonable value of the services rendered by him to appellants in the will contest, and setting out in detail the elements to be...
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