Kilpatrick v. Haley

• Citation: 6 Colo.App. 407,41 P. 508
• Parties: KILPATRICK et al. v. HALEY et al. [1]
• Decision Date: 10 June 1895
• Court: Court of Appeals of Colorado

41 P. 508

6 Colo.App. 407

KILPATRICK et al. v. HALEY et al. ^[1]

Court of Appeals of Colorado

June 10, 1895

Appeal from district court, Arapahoe county.

Action by Ora Haley and others against James G. Kilpatrick and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Thomas H. Hood, for appellants.

W.T Hughes, for appellees.

THOMSON J.

This suit was brought by the appellees upon an injunction bond executed by the appellants in an action previously commenced by James G. Kilpatrick against the appellees. At the trial for the purpose of showing a portion of the damage sustained by reason of the injunction to obtain which the bond was given, it was proved that the plaintiffs had paid $200 to an attorney for his services in procuring the dissolution of the injunction; and a lawyer was introduced, who testified that in his opinion, $250 would have been a proper charge for the services. Upon the question of the value of the services rendered, the defendants requested the court to instruct the jury that they were not bound by the testimony of the expert witness, but that it might be considered by them, together with all the other evidence showing the nature of the services, the time occupied in the performance of them, and the benefit derived by the plaintiffs from their rendition. The court refused to so instruct, and upon its own motion gave the following instruction: "Upon the question of attorney's fees, there is nothing whatever open for you in this case, except to find that, as to that matter, that the plaintiffs are entitled to recover $200. There is no evidence in the case except such evidence as supports that proposition." If this instruction had pertained to a question of fact concerning which there was no dispute, it would have been proper; but the jury cannot be concluded by testimony which is purely a statement of opinion. Expert testimony is entitled to consideration, in connection with the facts upon which it is based, and is intended to assist the jury in reaching a conclusion upon the entire evidence; but they should give it only the weight to which, in the light of their own knowledge and experience, they may consider it entitled. Their judgment upon the facts is not to be supplanted by the opinions of witnesses. The defendants' request should have been granted; and the instruction given, inasmuch as it took from the jury a question the decision of which belonged peculiarly to them, was erroneous. Leitensdorfer v. King, 7 Colo. 436, 4 P. 37; Head v. Hargrave, 105 U.S. 45.

But we think the action was prematurely brought. The complaint alleges the allowance of a temporary injunction in the case of Kilpatrick against the appellees, and its subsequent dissolution by the court. The answer avers that the injunction was dissolved upon a preliminary hearing, but that the suit in which it was allowed was still pending and undetermined; and it was admitted at the trial that such was the fact. The complaint in that suit was introduced in evidence. It alleged the execution to Kilpatrick by one ...