The Bedford Belt Railway Co. v. Palmer

• Decision Date: 24 September 1896
• Docket Number: 1,829
• Citation: 44 N.E. 686,16 Ind.App. 17
• Parties: THE BEDFORD BELT RAILWAY COMPANY v. PALMER
• Court: Indiana Appellate Court

44 N.E. 686

16 Ind.App. 17

THE BEDFORD BELT RAILWAY COMPANY v. PALMER

No. 1,829

Court of Appeals of Indiana

September 24, 1896

From the Monroe Circuit Court.

Reversed.

F. M Trissal, Matson & Giles and H. A. Lee, for appellant.

H. C Duncan, J. R. East and R. N. Palmer, for appellee.

OPINION

DAVIS, C. J.

This is an appeal from a judgment for $ 3,100.00 against the appellant, in an action brought by the appellee to recover compensation for his services as an attorney.

The only error assigned is the overruling of appellant's motion for a new trial.

George O. Iseminger, an attorney, was asked this question by appellee:

"From what you heard Mr. Palmer testify here as to the amounts in controversy in all these cases, and the services rendered by him, and the amount he fixes for his services, state whether or not, in your opinion, such services were reasonably worth the amount he charged for them?"

The following objections to the question were stated: "It permits the witness to pass his opinion on a statement made by Mr. Palmer. An expert must state the facts himself on which he bases his opinion, and not give it on the statement of others. It is clearly incompetent." The objection was overruled and exception saved.

The witness then answered: "They were."

The action of the court in overruling appellant's objection to the question and in admitting the evidence is assigned as one of the causes in the motion for a new trial.

In our opinion the court erred in this ruling.

It was not proper to ask the witness whether appellee's opinion as to the value of his service was correct. The appellee testified as to his services and the value thereof. The witness Iseminger was not asked as to his opinion of the value of the services "based upon a statement of the facts assumed to have been proven," but he was asked to "base his testimony upon his recollection and construction of the evidence given in the case" by appellee. The rule applicable in such cases is correctly stated in Craig, Admr., v Noblesville, etc., Gravel Road Co., 98 Ind. 109, as follows: "We think the only safe rule in allowing an expert witness to give an opinion, based upon the testimony of others, is to require the assumed facts, upon which an opinion is desired, to be stated hypothetically; then the jury can judge whether the assumed facts, upon which the opinion is based, have been proved, and weigh the opinion as applicable to them. "

The question propounded to the witness did not seek to elicit his opinion based upon his personal knowledge...