Levine v. Barry

• Decision Date: 25 February 1921
• Docket Number: 16036.
• Citation: 195 P. 1003,114 Wash. 623
• Parties: LEVINE v. BARRY et al.
• Court: Washington Supreme Court

195 P. 1003

114 Wash. 623

LEVINE v. BARRY et al.

No. 16036.

Supreme Court of Washington

February 25, 1921

Department 1.

Appeal from Superior Court, King County; King Dykeman, Judge.

Action by Benjamin M. Levine against Francis N. Barry and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Charles P. Murphy, of Seattle, for appellants.

J Grattan O'Bryan, of Seattle, for respondent.

BRIDGES J.

The respondent, Levine, brought this action against the appellants to recover for legal services performed by him for the appellants at their special instance and request. The respondent in his complaint demanded the sum of $500. The appellants, answering the complaint, admitted that the respondent had performed legal services in their behalf, but denied that the services rendered were worth the sum of $500 or any greater sum than $50, which sum they paid into court for the respondent's use. After issue joined a trial was had before a jury, who returned a verdict in the respondent's favor for $125. This appeal is from a judgment entered on the verdict.

The principal errors assigned are that the court unduly limited the cross-examination of the respondent and the cross-examination of his expert witnesses. After eliciting from the respondent the fact that he had been engaged in the practice of law in the city of Seattle for a period of 10 years prior to the time of the trial, it was sought to elicit from him the amount of business he had transacted during that period. After a number of questions had been asked and answered on this subject, he was asked to state how many cases he had tried in the superior court in the last 6 years. To this question an objection was interposed and sustained by the court. He was then asked if it was not a fact that he had never alone tried a case in the superior court within the 6-year period named, to which the witness answered that it was not a fact. Following this he was asked to name a case which he had so tried without assistance, to which an objection was interposed and likewise sustained. On the rulings of the court on these objections the appellants base the contention that their cross-examination of the respondent was unduly limited.

The general rule is that an attorney, when suing on quantum meruit for professional services, may show, not only the nature and character of the services rendered and the result attained, but may show also his standing in the profession for learning, skill, and proficiency, and the experience he has had in practice. Stanton et al. v. Embry, 93 U.S. 548, 23 L.Ed. 983; Randall v. Packard, 142 N.Y 47, 36 N.E. 823; Clark v. Ellsworth, 104 Iowa, 442, 73 N.W. 1023.

It is perhaps the rule also that the attorney's adversary may show his want of skill and experience to affect the amount of the recovery, although this branch of the question seems not to have been broached in any of the decided cases. The case most nearly approaching the question to which we have been cited is Phelps v. Hunt, 40 Conn. 97. There the attorney sued upon a quantum meruit. In his case in chief he testified in his own behalf as to the nature of the services rendered and their reasonable value. On cross-examination he was asked what his professional income was for the year in which he claimed to have rendered the services sued for, and what it was the year before and what it was the year after. Objections were interposed and sustained to the questions, and on appeal the court held such an inquiry permissible. The court seems, however, to have rested its decision on the peculiar nature of the services performed in the particular case rather than upon a general rule. In the course of the opinion it was said:

'Should a question arise as to the value of services, in an action brought by an attorney to recover fees, where the nature of the services performed makes the possession of certain qualifications to constitute an important element in the value of those services, evidence of professional standing is clearly admissible, and is entitled to much consideration. Such seems to have been the character of the case at bar.'

But conceding the inquiry proper, the extent to which it is permitted to go must rest in the sound discretion of the trial court. Certainly the court is not required to permit inquiry into the details of the plaintiff's business during all the years he has been engaged in the practice. It is a collateral inquiry at best, and when the matter has been covered by a general inquiry, it cannot be error to exclude examination into details. Here the court permitted the general inquiry. It stopped the inquiry only after it began to call for specific matters. We cannot hold the ruling error.

With reference to the expert witnesses, after they had testified to the value of the respondent's services based upon his narrative of the services performed, the appellant sought to elicit their opinion upon another and different state of facts; facts not shown by the evidence, but facts which the appellants stated they would offer evidence tending to prove when their side of the case was entered upon. The court sustained objections to the questions, and its ruling furnishes the foundation for the assignment that the cross-examination of the expert witnesses was unduly limited. The respondent contends, and the court sems to have held, that it is entirely within the discretion of the court whether, on cross-examination of an expert witness, it will permit hypothetical questions which are not based on the evidence then in the case. The appellant, on the contrary, maintains that, as a matter of right, he was entitled to propound questions which were based on the facts as he contended he would be able to show them to be.

This assignment of error raises a question of practice which, aside from its importance in this case, deserves serious consideration. Our discussion and decision will be limited to those expert witnesses who testify exclusively from facts stated in hypothetical questions, and not to witnesses whose opinions are based on personal knowledge of the facts from which they draw their conclusions or opinions.

We think it should at once be conceded that the proper rule is that hypothetical questions propounded on direct examination should be based upon the testimony in the case. But cross-examination should not be so limited. The plaintiff here had shown the amount of his services and the circumstances under which they had been performed, but the defendant had not reached his part of the case, and had not had an opportunity to present his version of the facts. To say that under these circumstances the defendant could cross-examine plaintiff's expert witness only upon the facts as produced by the plaintiff would be, in nine cases out of ten, to deprive him of the benefits of cross-examination, because, usually, the defendant will concede the correctness of the answer of the expert witness, based upon the plaintiff's version of the facts.

We do not think an expert witness is in exactly the same situation as the ordinary witness. He is permitted to give his opinion because he is supposed to be unprejudiced and to be skilled and learned in matters concerning which the average individual is profoundly ignorant. He is not supposed to have any knowledge of the facts of the case. Being ignorant of all the facts, he can testify only from those which are given to him in the hypothetical question. He is permitted to testify for the purpose of throwing light on the question of trial. Such being the situation, the defendant should have been permitted to propound to plaintiff's expert hypothetical questions based upon his theory of what the facts were, and not be confined to the facts as shown by his adversary.

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