Stark v. Hill
| Decision Date | 08 May 1888 |
| Citation | 31 Mo.App. 101 |
| Parties | CHARLES B. STARK, Respondent, v. BRITTON A. HILL, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.
Reversed and remanded.
MARTIN LAUGHLIN & KERN, for the appellant: The court erred in excluding this duplicate copy of the depositions taken by commissioner Denison. When shown to contain the questions propounded by plaintiff to the witnesses, and the answers given, the matter was competent as showing the work actually done by the plaintiff, and it was proper for the court trying the case to know what this work was, and also material for the experts to base their opinions upon as to the value of the work done. It was competent for the defendant to show just what the work sued for was, and to that end competent for the witness Cohick to use the memoranda made at the time to tell the court what that work in fact was. We understand the rule to be that, in the absence of an express stipulation for his fee, an attorney is entitled to recover the reasonable value of his services. Wright v. Baldwin, 51 Mo. 269; Webb v. Browning, 14 Mo. 354; Rose v. Spies, 44 Mo. 20. But we contend that the reasonable value of such services do not depend entirely, but indeed to a very limited extent, on the time occupied in such services. The element of professional knowledge, the element of professional skill, and the element of benefit to the client are of vital, if not of controlling, importance. Wicks on Attorneys at Law, 577. Lombard v. Bayard, 1 Will Jr., 207, referred to in note, Wicks on Attorneys, page 578, in this language: " In all cases, professional compensation is gauged not so much by the amount of labor as by the amount in controversy, the ability of the party, and the result of the effort." Rose v. Spies, 44 Mo. 20.
R. S. MACDONALD and JOHN A. GILLIAM, for the respondent: Appellant's questions to witnesses Simmons and Cohick, founded upon the Cohick memoranda, called for their opinions as to the materiality, relevancy, and competency of the questions asked by Stark. These were questions of law, and a witness is not permitted to give his opinion on a question of domestic law. Lawson on Expert Evidence, 60; Gaylor's Appeal, 43 Conn. 82; Massure v. Noble, 11 Ill. 531; Roberts v. Cooper, 20 How. 467; 2 Miller 529. Supposing the Cohick memoranda were competent to prove that Mr. Stark asked immaterial and irrelevant questions, such evidence would be merely cumulative to Cohick's, Wingate's, and Simon's evidence, and the rule is not to reverse for the admission or exclusion of merely cumulative evidence. Prickett v. Anchor Line, 13 Mo.App. 436; Clark v. Finn, 12 Mo.App. 583; Gas Co. v. St. Louis, 12 Mo.App. 573; Miller v. Miller, 13 Mo.App. 591; State v. McGuire, 16 Mo.App. 558.
The plaintiff, who is an attorney-at-law, has brought this action to recover the reasonable value of certain professional services rendered by him at the instance and request of the defendant, between the first of April and the first of August, 1886. The answer was a general denial. The cause was tried before the court without a jury. There was a finding and judgment in favor of the plaintiff in the sum of eleven hundred and seventy-five dollars. No instructions were asked or given. The only question which arises upon this appeal is the propriety of the ruling of the trial court in excluding a certain writing as evidence and in ruling that the witness who wrote it could not use it as a memorandum for the purpose of refreshing his recollection.
It appeared from the evidence that the defendant employed the plaintiff to take depositions in St. Louis to be used in defence of an action brought by Mrs. Edmundstone against E. C. James in the Supreme Court of St. Lawrence county, New York, which action the defendant was interested in defending; and that the plaintiff had consumed about eighty-two days in the taking of these depositions. The plaintiff's evidence tended to show that the defendant had agreed to give him a reasonable professional remuneration for the services so to be performed, while the defendant's evidence was to the effect that he agreed to give the plaintiff ten dollars per day. The defendant undertook to show that the plaintiff had prolonged the taking of the depositions for an unreasonable length of time and had conducted the examination and cross-examination of the witnesses in an unskilful manner; and for this purpose he offered in evidence a transcript of the examination of the witnesses taken down by another member of the bar employed by him for that purpose. This gentleman who had taken this transcript testified that it contained all the questions which were put to the witnesses and all the answers given by them, but it appeared from his testimony that it was not a literal copy of the depositions as they were taken down and forwarded by the commissioner, and that it omitted some unimportant things which those depositions contained, such as statements of meetings and adjournments on days on which no testimony had been taken. On the objection of the plaintiff, the court excluded this transcript of the examination of the witnesses and afterwards refused to allow the attorney who had taken it to testify from it, as a memorandum to refresh his recollection, as to the questions which were put to one of the witnesses and the answers given by her, on the ground that they were irrelevant and immaterial.
We are of opinion that in so ruling the trial court erred. Although the depositions, as taken and certified and forwarded by the commissioner, were the only competent evidence of the testimony of the various witnesses for the purposes of the suit in which they were taken,--namely, the suit of Edmundstone vs. James in the court in New York,--yet, for the purposes of this suit, any transcript of the testimony of such witnesses, verified by the oath of a competent witness, or even oral testimony as to the manner in which they had been examined and cross-examined, was competent evidence. Certainly it was material to the present issue to show in what manner the plaintiff had discharged the duty which he had been employed by the defendant to perform. It was not intended to read this mass of testimony as evidence. Counsel for the defendant in offering it disclaimed that purpose; but it was proposed that experts should examine it and from such examination should say whether the plaintiff had protracted the examination of the witnesses unreasonably, and whether he had discharged the professional duty for which the defendant had employed him in a reasonably skilful and proper manner. Certainly this inquiry had a direct tendency to show what was the reasonable value of his services; since services performed skilfully and without an unnecessary waste of time and consequent accumulation of costs would be worth more than services performed unskilfully and with an unnecessary waste of time. If, then, this evidence was material, a transcript of the testimony taken down upon the spot and shown to be correct by the oath of the person who took it, would seem to be the very best evidence of the manner in which the examinations had been conducted. The case, we think, has been aptly likened by counsel for the defendant in their printed argument to a case where a conveyancer brings an action for the reasonable value of his services in drawing a will. Would not the will itself, or a copy of it, be relevant upon the question whether he had performed his services with reasonable care and professional skill?
We, of course, express no opinion upon the questions of fact involved in this case, further than to say that the circumstance that the defendant in this action is himself an eminent practitioner and that he was frequently present at the examination of these witnesses, is not of itself controlling, so far as the question of the admissibility of this instrument of evidence is concerned; since it might well be that, without carefully going over the depositions at the time when they were taken, he confided in the care, skill, and fidelity of the plaintiff in respect of the manner in which the examinations should be conducted and the extent to which they should be prolonged.
All the judges concurring, the judgment is reversed and the cause remanded.
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