Jackson v. Petitioner
| Citation | 107 W.Va. 507 |
| Decision Date | 28 May 1929 |
| Docket Number | (No. 6336) |
| Court | Supreme Court of West Virginia |
| Parties | Jackson v. Blair Jr. v. Clark Coal & Coke Company |
Evidence Permitting Hypothetical Question to Expert Witness Assuming Facts Unsupported by Evidence Held Erroneous. A hypothetical question which assumes facts unsupported by the evidence should not be; submitted to an expert witness.
(Evidence, 22 C. j. § 804, p. 714, n. 97.
(Note: Parenthetical references by Editors, C. J. Cyc, not part of Syllabi).
Error to Circuit Court, Marion County.
Action by Jackson V. Blair, Jr., against the Clark Coal & Coke Company. Judgment for plaintiff, and defendant brings error.
Judgment reversed; verdict set aside; new trial awarded.
Frank R. Amos and Ward Lanham, for plaintiff in error. Henry 8. Lively, for defendant in error.
This is an, action by an attorney to recover the balance of the amount claimed as his fee. The defendant is the successor of four corporations which jointly owed the federal government a balance of $208,514.23, with interest, on income taxes for the year 1920. The plaintiff was employed by the defendant in 1925 to attempt to reduce that balance after two other tax experts had failed. In connection with Captain M. G. Sperry, an attorney, and Virgil L. Highland, a prominent business man, he was instrumental in having the tax balance reduced by the government to $60,000.00. He devoted about two months of his time to the case, and made several trips to Washington and other places. He does not base his demand on the time consumed, however, but on the results obtained. He claims that with the interest included, his services resulted in a total saving of $241,270.84, to the four corporations. He fixed his fee at five per cent. of this amount, or $12,063.50. The defendant paid him $1,176.00. The jury allowed him the balance of his claim, which, with interest, amounted to $11,281.24. The trial court sustained the verdict and the defendant obtained a writ of error here.
Nineteen grounds of error are assigned, but as only four are elaborated in defendant's brief, we assume that the other fifteen were simply "thrown in for good measure."
The first error assigned is the refusal of the court to give instructions Nos. 4, 4a, 5, 6, 7, 9, 10, 12 and 13, requested by the defendant. Instructions 4, 4a, 12 and 13 have a common vice in that they seek to treat $2,074.53 (or "the amount of money already received by plaintiff" as No. 4a terms it) as compensation or part compensation to plaintiff, when as a matter of fact a material part of the $2,074.53 paid him by defendant was for costs and expenses. Nos. 5 and 6 would have submitted to the jury the question of whether the plaintiff had used ordinary care, skill and diligence in representing the defendant. There is no evidence warranting a submission of this question. Besides, plaintiff does not seek a recovery because of his care, skill and diligence, but because of what he accomplished. Nos. 7, 9 and 10 are substantially covered by defendant's instrnction No. 8, which was given. Consequently, we see no prejudice to the defendant because of instructions refused.
The second point of error is that the plaintiff was permitted to show in evidence the payment of dividends by the defendant in 1921, the year following that for which the taxes were assessed. The purpose of the plaintiff in introducing this evidence as stated in his brief was to show the difficulties before him in securing a reduction of the taxes. The effect of this evidence, according to the defendant was to create an inference that it had deliberately diverted to its stockholders money due the government. As the plaintiff's case is based solely on the reduction which he claims to have secured, and not on the obstacles he overcame, this evidence is not logically relevant to the issue and was inadmissible. 22 C. J., 158-9.
The third point of error is the refusal of the court to allow defendant's witness, Captain Sperry, to testify as to the fee he charged for his services in connection with the reduction secured. This evidence was properly rejected. What one lawyer charges is not the standard in such matters. He may charge too much or too little. The measure of an attorney's compensation, when not fixed by contract, is the amount usually paid to the profession for similar services. 6 C. J., p. 748, sec. 331.
The fourth point of error is a hypothetical question which was asked several expert witnesses introduced by the plaintiff. After negotiations had been pending between the plaintiff and the government officials for sometime, the plaintiff secured an official indication that the government would accept...
To continue reading
Request your trial