Philler v. Waukesha Cnty.

Decision Date20 April 1909
Citation120 N.W. 829,139 Wis. 211
CourtWisconsin Supreme Court


Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by Hugo Philler against Waukesha County. Judgment for defendant, and plaintiff appeals. Affirmed.

Appeal by plaintiff from order sustaining demurrer to the complaint, wherein it was alleged that plaintiff was a competent physician;that in January, 1907, one McMahon was charged with the crime of murder and interposed a plea of insanity; that plaintiff at the request of McMahon's attorneys, and upon their assurance that the county would be liable for his services, made careful medical examination of said McMahon with reference to sanity, and in January attended upon the trial and gave testimony as an expert witness five days in response to subpœna, and upon the second trial of said issue in July he similarly attended seven days and gave testimony as an expert, apparently on behalf of the defendant. He presented separate bills for the two trials at $50 per day to the county board, which were disallowed by a single order or vote, and he duly appealed to the circuit court. A demurrer on various grounds was interposed, but sustained on the ground that the complaint failed to state a cause of action against the county.

Ryan, Merton & Newberry, for appellant.

Milo Muckleston and J. E. Thomas (V. H. Tichenor, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

The complaint evinces a main purpose to state a cause of action against the county for the value of a physician's time and services in making examinations of the symptoms and mental condition of a defendant in a criminal trial, and in attending court to testify with respect to his sanity “as an expert witness,” in the words of the complaint. Except for said quoted clause, there is no suggestion as to the character of the testimony he gave, whether it related to facts which he discovered by observation, albeit a trained and expert observation, or to an opinion, probably both.

The effect of our statutes is to require all persons to obey the subpœna of a court, and their compensation for such obedience is fixed at $1.50 per day, with mileage. Sections 4063, 4064, 4067, St. 1898. In a civil action between private parties those fees must be paid in advance, if demanded. Section 4057, St. 1898. In a criminal case they need not be tendered or paid in advance (section 4058, St. 1898), though doubtless a contract may in some cases be implied to pay the specified fees for the service. The duty of every witness is to attend as long as commanded, and to testify to all material facts within his knowledge. This is a duty resting upon all members of the community as such to aid the courts in the administration of justice and insistence upon it by the courts does not constitute such a taking of property as is forbidden by the Constitution. West v. State, 1 Wis. 209. This is not seriously controverted by the appellant's counsel in its application to what they call ordinary witnesses testifying to ordinary facts, but they contend that, when a physician is called upon to give expert testimony, his services are of a different character, and cannot be demanded without compensation. The word “expert” in this connection is somewhat loose and uncertain. Much of the testimony of a so-called expert is in no wise different in character from that of any other witness. He may be called on to testify to that which he sees, hears, or otherwise discovers by the use of his senses; but those facts may be such that no one but a trained expert would discover them by such use of his senses. A skilled physician discovers facts by the use of sight, hearing, or feeling which another man might not. But this distinction is one of degree merely, and not of kind. All men differ in their ability to observe accurately and in the certainty of knowledge which they derive from such observation. An illustration of such testimony, not in the legal sense expert, and yet dependent on the peculiar knowledge and abilities of the witness, is presented in Hocking v. Windsor Spring Co., 131 Wis. 532, 539, 111 N. W. 685, where an oculist, not competent under our law to testify as an expert, was allowed to testify to physical injuries which doubtless could not have been seen and discovered or described by a nonprofessional. There can be no doubt in this field that every man owes a duty to attend and testify to the material facts that he knows notwithstanding the knowledge thereof may be due either to his learning or his expert faculties. Any attempt to draw a line between the exceptionally stupid and nonobservant person and others who, by greater alertness, training or skill in observation, may acquire more knowledge, is impracticable and irrational. The educated and intelligent owe the same duty of aid to the courts up to the limit of their ability as does the less competent man--the man whose services are worth $50 per day as well as he whose time is worth but $2. The more difficult field is entered when we approach the question of calling upon men of exceptional experience and qualifications to give their opinion as the result either of facts which they observe or from an hypothetical statement of facts. This is the real field of expert evidence. It is there that the expert can testify and the nonexpert cannot. But here also the expression “expert” is of very broad meaning. It includes the mechanic, whose opinion may be asked upon the strength or value of a brick wall or chimney, or the farmer, with reference to quality and value of lands, crops or farm animals, as well as the man of most abstruse research and learning in the fields of chemistry and bacteriology or medicine. So here, again, no line can be drawn on principles between the men or the testimony in favor of a physician over a bricklayer. It would seem on principle, in analogy to the previous discussion, that, if from the witness's observation or from the hypothetical facts stated to him he has consciously in mind either knowledge or an opinion, such knowledge or existent opinion is a fact as to which he may be required to testify; but, as is often the case, and in the higher branches of expert learning perhaps usually, an amount of study, experimentation, thought, and reflection may be necessary to the formation of an opinion, and the witness may often honestly answer that he has not formed such opinion. The chemist, after submitting a substance to various analyses and reactions, may yet need to study the books or make further experimentation before he can assert the presence or absence of certain elements. The physician, after exhaustive inspection and tests, is still often left in doubt, and does not venture an opinion to his patient until after long study. Such study, reflection, etc., is not the function of the ordinary witness. It is not within the command of the subpœna, and there is no reason to think that the statutes were intended to require it of any witness merely as such. If a party desires that any witness, expert or otherwise, equip himself with knowledge by research or inspection, it may employ him to do so, but such employment will be controlled by the ordinary rules of contract, express or implied.

In some of the earlier text-books and decisions it was asserted that courts could not or would not compel certain professional men to attend and testify on professional subjects for the mere ordinary witness fee, more especially on the ground that the time of such witnesses was so valuable that they ought not to be thus coerced....

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17 cases
  • Imposition of Sanctions in Alt v. Cline
    • United States
    • Wisconsin Supreme Court
    • 18 Febrero 1999
    ...testimony "call[s] upon [persons] of exceptional experience and qualifications to give their opinion...." Philler v. Waukesha County, 139 Wis. 211, 214, 120 N.W. 829 (1909). ¶18 There can be no doubt that the question posed called for an expert opinion. Whether a gush of blood in a person w......
  • Carney-Hayes v. Northwest Wis. Home Care
    • United States
    • Ohio Supreme Court
    • 12 Julio 2005
    ...them to come to court as a duty of citizenship and testify for a statutory witness fee. This was the rule in Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829 (1909), where a "competent physician" was engaged by a criminal defense attorney to make a "careful medical examination" of the......
  • Carney-Hayes v. NW WIS. HOME CARE
    • United States
    • Wisconsin Supreme Court
    • 12 Julio 2005
    ...them to come to court as a duty of citizenship and testify for a statutory witness fee. This was the rule in Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829 (1909), where a "competent physician" was engaged by a criminal defense attorney to make a "careful medical examination" of the......
  • Comm'rs of Lincoln Park v. Schmidt
    • United States
    • Illinois Supreme Court
    • 20 Noviembre 1946
    ...of being an expert. Dixon v. People, 168 Ill. 179, 48 N.E. 108,39 L.R.A. 116;Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829, 25 L.R.A., N.S., 1040, 131 Am.St.Rep. 1055,17 Ann.Cas. 712; 2 A.L.R. 1576. The general rule of costs does not apply in eminent domain cases where the petition......
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