Reynolds v. Henry, 33952.

• Decision Date: 15 November 1921
• Docket Number: No. 33952.,33952.
• Parties: REYNOLDS & HEITSMAN v. HENRY.
• Court: Iowa Supreme Court

193 Iowa 164

185 N.W. 67

REYNOLDS & HEITSMAN

v.HENRY.^a1

No. 33952.

Supreme Court of Iowa.

Nov. 15, 1921.

Appeal from District Court, Mahaska County; H. F. Wagner, Judge.

Action for attorneys' fees claimed to be due plaintiffs from defendant for services rendered defendant's wife in a divorce action brought against her by defendant. Jury returned a verdict for plaintiffs. From judgment rendered thereon, defendant appeals. Affirmed.L. T. Shangle and D. C. Waggoner, both of Oskaloosa, for appellant.

McCoy & McCoy, of Oskaloosa, for appellees.

FAVILLE, J.

In 1916 appellant's wife brought an action for divorce against him in the district court of Mahaska county, Iowa. In this action, appellant filed an answer and cross-bill asking for divorce against his wife on the grounds of cruel and inhuman treatment. In February following the wife dismissed her action. The cause proceeded to trial on the appellant's cross-bill, and the court dismissed the same, leaving the parties in statu quo. The appellant's wife employed counsel to appear for her in the original suit brought by her, and said counsel were allowed attorneys' fees for said services rendered, which were paid by the appellant herein. The appellees were not her counsel in said matter. The wife employed the appellees in this cause as her attorneys to defend the appellant's action for divorce on his cross-bill, and this suit is brought by the appellees to recover from the appellant the reasonable value of the services so rendered appellant's wife in successfully defending appellant's suit for divorce on said cross-bill. It appeared that the wife was without means.

[1] I. Upon the trial of this action the appellees were permitted to offer testimony as to the value of the appellant's property at the time the divorce action was pending and tried. This evidence was objected to as incompetent, irrelevant, and immaterial to any issue involved in the case.

Clark v. Ellsworth, 104 Iowa, 442, 73 N. W. 1023, was a case in which the situation was somewhat similar to the case at bar, and in said cause we said:

“And where the subject-matter of the litigation is of great importance to the litigants, and of a character to lead them to use every legitimate effort to succeed, the wealth of a party, and his consequent ability to make a severe contest, may be considered in connection with his disposition to do so, as tending to show the importance and value of the services which the attorney, for whose compensation he was responsible, was required to render. * * * The district court, by its charge, required the jury not to take into consideration the wealth of the defendant, nor his ability to pay for the services rendered by Clark to enhance the value of the services, but permitted the jury to consider it as an incident in ascertaining the importance and gravity of the interests involved in the litigation in which the services were rendered. We think this was correct, and not in conflict with what we decided on the former appeal.”

Unless we are to overrule Clark v. Ellsworth, the court did not err in admitting this testimony for the purpose stated. No instruction appears to have been given by the court on this specific question, nor does the record show that any instruction was requested. We adhere to the rule announced in Clark's case. We find no error in this ruling.

[2] II. One of the appellees was asked if he knew the fair and reasonable compensation of an attorney for the services rendered by appellee firm in the preparation and defense of the cross-petition in the case referred to in the county where the services were performed and at the time that the services were rendered, and, having answered that he did know the value of such compensation, was permitted to state what, in his judgment, it was fairly and reasonably worth. There was no error in admitting this evidence, and the objection that the same was incompetent, immaterial, and irrelevant, and that there was no allegation in the petition to support the same, was properly overruled. See Clark v. Ellsworth, supra.

[3] III. The appellant offered in evidence the testimony of several attorneys who testified regarding the fair and reasonable value of the services of the appellees as attorneys for appellant's wife in defending the divorce action at the time and place where the services were rendered. This testimony was in answer to hypothetical questions. Error is assigned upon the overruling of appellant's objections to the hypothetical question propounded to these witnesses. The objection urged was that it was “incompetent, immaterial, and irrelevant and for the reason there are matters assumed in the hypothetical question which are not in evidence and which are not true, and no proper foundation is laid for the introduction of testimony as to the value of services.” A motion to strike said evidence was subsequently made, predicated on the same grounds. It is now urged that the court erred in overruling this objection and motion.

The particular point stressed is that the hypothetical question propounded to these witnesses assumed certain matters that were not shown by the evidence. We think the objection urged is hypercritical. We have examined the hypothetical question, and think the various matters assumed therein had substantial proof in the record to sustain them. But, be this as it may, there was no error in overruling the objections that were interposed to said question. A party objecting to a long hypothetical question involving, as such questions generally do, the assumption of a large number of facts, has no right to conceal his real objection by the camouflage that it is “immaterial, irrelevant, and incompetent, and assumes facts not shown by the record.” The trial court is entitled to know with some degree of precision the exact objection that is being urged against such a question, and opposing counsel are also entitled to know the real basis of the objection, in order that the question may be rectified, if possible, in respect to the matters complained of.

In Ranne v. Hodges, 181 Iowa, 162, 162 N. W. 803. we said:

“Hypothetical questions usually include several and sometimes a great number of facts, and it would be unfair to exact of the trial court an absolutely accurate comparison between those recited and the proof adduced. That is a matter to be attended by counsel. Certainly it is not too much to require that the party objecting shall know the ground on which he bases the objection, and enlighten the court concerning the particular defect in the question. State v. Ginger, 80 Iowa, 574;Allison v. Parkinson, 108 Iowa, 154;Seckerson v. Sinclair (N. D.) 140 N. W. 239;Prosser v. Montana Cent. R. Co., 17 Mont. 372, 30 L. R. A. 814;Rivard v. Rivard, 109 Mich. 98, 63 Am. St. 566; Hawland v. Oakland, C. St. R. Co., 110 Cal. 513, 42 Pac. 983. Ordinarily, as was said in Meeker v. Meeker, 74 Iowa, 352, opposing counsel will not be slow, in re-examination of the witness, to correct the hypothesis upon which the question is based, if it be inaccurate, and, as said in Hall v. Rankin, 87 Iowa, 261: ‘Hypothetical questions need not be framed with technical accuracy; that an error as to one or more facts is not prejudicial, as the opposing party may, on cross-examination, show the error, if any there be.’

The items referred to could readily have been eliminated by a question from counsel for proponents, and, as the court's attention was not directed thereto by specific objection nor in the cross-examination, we are of opinion that they are not in a situation to complain.”

We have no desire to depart from the reasonable and salutary rules above announced. Furthermore, in the instant case the court carefully and fully instructed the jury that, if it found one or more of the assumptions as to the facts indulged in, in framing the hypothetical question, had not been established by the evidence, then the estimate or opinion given by the expert based upon the hypothetical question would be wholly destroyed and rejected.

There is no merit in the appellant's contention at this point.

[4] IV. Error is predicated upon the following record: An attorney, as a witness for the appellees, testified to the value of the services rendered by the appellees. On cross-examination the following question was propounded to him:

“Now do you think it was necessary in this action for divorce, on the cross-petition of which you have testified, that the attorneys should spend a week briefing up the law on cruel and inhuman treatment on this cross-petition?”

The...