Shuman v. Ruud

• Decision Date: 02 December 1916
• Docket Number: 1915
• Court: North Dakota Supreme Court

160 N.W. 507

35 N.D. 384

B. L. SHUMAN v. MARTIN O. RUUD

No. 1915

Supreme Court of North Dakota

December 2, 1916

Appeal from the District Court of Pierce County, Burr, J.

Modified and judgment directed to be entered on the verdict.

Judgment vacated, and judgment entered upon the verdict for $ 210 and interest and trial court costs and disbursements.

R. E Wenzel, for appellant.

It is proper to receive expert testimony as to the prices usually and customarily charged by persons in the same profession and in the same locality. But such witnesses should be left to form and frame their own answers as to the value of the services rendered, instead of having the amount charged included in improper hypothetical questions. 2 Enc. Ev. p 165; Spencer v. Collins, 20 Ann. Cas. 55, note; Maneaty v. Steele, 112 Ill.App. 19.

Expert opinion evidence on the question of the value of the services rendered by an attorney is not conclusive. The fact still remains a question for the jury. 2 Enc. Ev. p. 172; Spencer v. Collins, 20 Ann. Cas. 56, note; Head v. Hargrave, 105 U.S. 45, 26 L.Ed. 1028; Langford v Jones, 18 Ore. 307, 22 P. 1064; Campbell v. Brown, 81 Kan. 480, 26 L.R.A.(N.S.) 1142, 106 P. 37; Hull v. St. Louis, 42 L.R.A. 764, note; Re Dorland, 63 Cal. 281; Clark v. Ellsworth, 104 Iowa 442, 73 N.W. 1023; Arndt v. Hosford, 82 Iowa 499, 48 N.W. 981; Olson v. Gjertson, 42 Minn. 407, 44 N.W. 306; Moore v. Ellis, 89 Wis. 108, 61 N.W. 291; Lee v. Lomax, 219 Ill. 218, 76 N.E. 377; Noftzger v. Moffett, 63 Kan. 354, 65 P. 670; Turnbull v. Richardson, 69 Mich. 400, 37 N.W. 499; Bourke v. Whiting, 19 Colo. 1, 34 P. 172; State v. Miller, 9 Houst. (Del.) 564, 32 A. 137; Humphries v. Johnson, 20 Ind. 190; Bentley v. United States, 26 Ct. Cl. 241; Cosgrove v. Leonard, 134 Mo. 419, 33 S.W. 777, 35 S.W. 1137; Walbridge v. Barrett, 118 Mich. 433, 76 N.W. 973; Kittredge v. Armstrong, 11 Ohio Dec. Reprint, 661, 28 Ohio L. J. 249; Freese v. Pennie, 110 Cal. 467, 42 P. 978; Rose v. Spies, 44 Mo. 20; McMannomy v. Chicago, D. & V. R. Co. 167 Ill. 497, 47 N.E. 712; Zimmer v. Kilborn, 165 Cal. 523, 132 P. 1026, Ann. Cas. 1914D, 368.

The trial court had no right to order judgment notwithstanding the verdict for a larger sum than found by the jury. Remington v. Eastern R. Co. 109 Wis. 154, 84 N.W. 898, 85 N.W. 321; Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 86 N.W. 243; Richardson v. Tyson, 110 Wis. 572, 84 Am. St. Rep. 937, 86 N.W. 250; Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819; AEtna Indemnity Co. v. Schroeder, 12 N.D. 120, 95 N.W. 436; Nelson v. Grondahl, 12 N.D. 133, 96 N.W. 299; Welch v. Northern P. R. Co. 14 N.D. 25, 103 N.W. 396; Houghton Implement Co. v. Vavrosky, 15 N.D. 308, 109 N.W. 1024; Kerr v. Anderson, 16 N.D. 38, 116 N.W. 614; Kirk v. Salt Lake City, 32 Utah 143, 12 L.R.A.(N.S.) 1023, 89 P. 458.

Campbell & Jongewaard, for respondent.

A motion for a new trial must be made within sixty days from the date of the verdict. This requirement is in no wise dependent upon the entry of judgment or service of notice thereof. 29 Cyc. 850, 851; Comp. Laws 1913, § 7664.

The application for judgment notwithstanding the verdict, or for a new trial, may be separate or combined; but the former alone does not entitle the applicant to a new trial. 29 Cyc. 726-753.

A subject not in any manner touched upon indirect examination cannot be gone into on cross-examination, and a proper objection should be sustained. Hogen v. Klabo, 13 N.D. 319, 100 N.W. 847.

Where a trial judge knows of his own knowledge facts about a case being heard by him, he has no right to apply or use them. He must get his information from evidence adduced in open court. If he relies upon facts of which he has personal knowledge, he should lay aside the judicial ermine and take his place in the witness box. Ladd v. Witte, 116 Wis. 35, 92 N.W. 365; Nelson v. Grondahl, 12 N.D. 133, 96 N.W. 299; Territory v. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740, 2 Am. Crim. Rep. 159; Wood v. Barker, 49 Mich. 295, 13 N.W. 597.

OPINION

GOSS, J.

Plaintiff recovered of defendant a verdict for $ 210 as a balance of attorney fees. Not satisfied with his recovery, plaintiff moved for judgment notwithstanding the verdict for $ 370, claiming that the undisputed expert testimony of plaintiff and an expert witness as to the value of attorney fees rendered by plaintiff conclusively established their value to be $ 370, and hence that there had been no issue on the question of value for the jury to pass upon. The motion was granted, and judgment non obstante veredicto was ordered for $ 370 and interest. From this judgment defendant appeals.

The question presented therefore is whether uncontroverted expert testimony as to value of attorneys' fees so conclusively established the value of such fees to be as so fixed by experts as to establish such value as a fact and warrant a judgment non obstante as entered, where a jury have found the value thereof to be less. This resolves to the legal effect or probative force of expert testimony as to value of attorney fees. If the expert testimony conclusively established as a fact the value in the amount testified to by the expert, judgment was properly entered; if not, judgment should have been entered instead on the verdict.

There is no conflict in the expert testimony as to value of such legal services, nor in the services as rendered. Defendant contended the services were worth no more than $ 150; the jury found the fact to be that their value was $ 230.

The trial court was in error in granting judgment for a greater amount than the verdict. While there is some conflict as to the probative force of expert testimony of the worth of medical and surgical services, there seems to be none as to the corresponding value of attorney fees. And in every instance the value of attorney fees becomes a question of fact to be determined by the jury even where the expert testimony as to value is all in one accord and without conflict or is uncontradicted.

The very recent and excellent treatise, "Modern Law of Evidence," by Chamberlayne, §§ 2172A et seq. contains the following discussion on this very question "The jury are not necessarily obliged to follow the estimate of a witness simply because he is uncontradicted. Such inferences are not conclusive. It is to be remembered that the conclusion of a witness as to value is merely secondary evidence, displacing, only to the extent that seems to be necessary, the reasoning of the jury upon the primary phenomena narrated by witnesses. It follows that neither the inference or conclusion of an observer nor the more ripened judgment of the expert relieves the jury of the duty of doing their own reasoning with regard to the facts of the case. American courts have gone to very considerable lengths, in this respect, in carrying out the so-called democratic policy of extending the function of the jury at the expense of that of the court. They have been permitted to act of their own knowledge, in the absence of all evidence, as to the fact regarding the value of property or services of a technical nature. For example, the fair price for an attorney's work may be fixed by the jury. The same rule has been applied to the findings of a jury as to the value of other services requiring special skill and experience; e. g., those rendered in the compilation of municipal charters and ordinances. The reasoning of the jury, being based upon common knowledge, cannot with safety to the cause of justice be left unfettered in dealing with estimates of value where the inference must be founded upon special skill. Thus, a state of the case may arise in which they will not be permitted to consider the question of value at all. This will happen where the determination of monetary worth can only be properly reached through the estimates of those possessed of special skill or experience, and no such persons have appeared to testify. A slight addition to the customary situation may bring into manifestation the operation of a somewhat different procedural principle,--the right of ...