Rose v. Spies

• Decision Date: 31 March 1869
• Parties: EDWARD ROSE, Respondent, v. FREDERICK SPIES, Appellant.
• Court: Missouri Supreme Court

44 Mo. 20

EDWARD ROSE, Respondent,

v.FREDERICK SPIES, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The facts appear in the opinion of the court.

George P. Strong, and F. Spies, for appellant.

The first instruction given by the court, marked No. 1, amounted to a comment upon the evidence, and that of the most dangerous character. It virtually told the jury that they were not bound to decide according to the evidence in the cause, but might decide from all the circumstances of the case. This was nothing less than a commentary upon the evidence, and such a commentary as was calculated to destroy its force in the minds of the jury. This court has often decided that such instructions are erroneous. (Chouquette v. Barada, 28 Mo. 491, 499; Anderson v. Kincheloe, 30 Mo. 520; Chambers v. McGiveron, 33 Mo. 202; Carroll v. Paul, 16 Mo. 226; The State v. Holmes, 17 Mo. 379; Loehner v. The Home Mut. Ins. Co., 19 Mo. 628.) It is error to instruct the jury to find as they think proper. This was virtually the effect of one of the instructions given in this case. (3 Mo. 580.)

Peacock & Cornwell, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The appellant, who is an attorney-at-law, was employed by one Eliza Roessler to commence and prosecute a suit in her behalf for damages against Joseph Stehle. It appears that Stehle had contracted marriage with Miss Roessler, and, at the time the marriage was solemnized, he had a wife living. As soon as this fact came to the knowledge of Miss Roessler, she procured a sentence of nullity, and then instituted proceedings against him to recover damages for the injuries she had sustained in consequence of his wrongful act. The appellant, as her attorney, prosecuted the suit and recovered a judgment in her favor, and against Stehle, for $6,000. He collected the judgment, with interest thereon, amounting to $6,010, and tendered her $3,005, claiming the other half as a compensation or fee in the case. This she did not accept. She assigned the judgment to the respondent, subject to whatever the appellant might be entitled to as a fee in the case; and the parties not being able to agree on the amount, this suit was brought. Upon a trial in the Circuit Court, the jury awarded appellant $1,250 for his services, and from that verdict he has appealed to this court.

The only question in the case is the value of the professional services rendered; and unless the court committed error in admitting or rejecting testimony, or in giving or refusing instructions, the verdict cannot be disturbed. The jury were the proper judges of the value, and, without some misdirection by which they were misled, there is nothing presented for interference here. It is admitted that the appellant performed his duty most faithfully and creditably, and, as the verdict evinces, with signal effect. The appellant testified and attempted to show that there was a contract or understanding that he should have half the judgment, or all that he recovered over $3,000, but this was entirely negatived by Miss Roessler; and the credibility of the witnesses and the weight that should be given to their testimony was wholly for the jury. Several members of the bar were sworn as to what would be a reasonable compensation, and they differed as to amounts, but all placed it above the verdict of the jury.

The court, at the request of the respondent, gave three instructions. The first declared, substantially, that in the absence of a contract fixing the value of...