207 Ky. 580 | Ky. Ct. App. | 1925
Opínion of the Court by
Affirming both cases.
Appellant in the first case is complaining of a judgment for $2,4-97.00, with interest from July 12, 1919, and in the second case of a judgment for $1,997.00, with interest from June 25, 1923. Axton was represented in the case of Axton v. Axton, reported in 182 Ky. 286, 206 S. W. 480, and 184 Ky. 615, 213 S. W. 548, iby two attorneys, the appellee Vance of Louisville, and E. B. Anderson of Owensboro, and when their services were concluded they asked Axton for a fee of $15,000.00, of which they told him $8,000.00 should be paid to Vance and $7,000.00 lo Anderson. These men were not partners, having been merely associated together in the representation of Axton.
The appellee, Vance, sued appellant Axton for- a balance of $6,997.00, with interest from July 12, 1919, claimed to be due him after allowing credit for $1,003.00 upon a fee of $8,000.00 charged appellant by Vance, for services rendered him as his attorney in the case of Axton v. Axton, supra.
In his answer, Axton says:
“Defendant denies that he has refused to pay any part of the fee claimed, but says that he has offered to pay and is now willing to pay the sum of $2,497.00 in addition to the sum of $1,003.00 which he has heretofore paid the plaintiff, and denies that there is now due to the plaintiff from defendant the sum of $6,997.00, or any sum in excess of $2,497.00."
At this juncture Vance moved for a judgment for the $2,497.00 which was not controverted, and the court entered judgment against Axton for $2,497.00, with interest from July 12, 1919, to which action of the court Axton reserved exceptions, and he has appealed therefrom. His objection was that the court allowed interest
In Spaulding v. Mason, 161 U. S. 375, 16 Sup. Ct. 592, 40 L. Ed. 738, the Supreme Court, in speaking through. Mr. Justice White, quoted with approval from Curtis v. Inneraity, 6 How. 146, 12 L. Ed. 380, the following languagé:
“It is a dictate of natural justice, and the law of every civilized country, that a man is bound in equity, not only to perform his engagements, but also to repair all the damages that accrue naturally from their breach.....Every one who contracts to pay money on a certain day knows that; if he fails to fulfill his contract, he must pay the established rate of interest as damages for his nonperformance. Hence it may correctly be said that such is the implied contract of the parties.”
In Henderson Cotton Mfg. Co. v. Lowell Machine Shops., 86 Ky. 668, 9 Ky. L. R. 831, 7 S. W. 142, this court said:
“The true.ground upon which to put the allowanee of interest is the fault of the party who is to pay the debt. If he has made default of payment, then ex aequo et bono, he should reimburse the creditor for keeping him out of the use of his money. He should render an equivalent for the use of what is not his own. If there be a specified time for payment, and a failure to then pay, or a demand of payment of a liquidated claim and default, then the debt should, as a matter of law, bear interest from the time of such failure. This is the current of authority, and it is supported by both right and reason.”
Axton, in his answer, admits that he owes Vance a balance of $2,497.00 for services, which the record shows were rendered prior to July 12, 1919. That money was then due. The only reason Axton owes this now is he owed it then. He was satisfied in his own mind then that he owed that much. .If his conscience then accused
After the entry of this judgment, Axton 'paid Vance $2,500.00, thus making a total sum paid of $3,503.00, and leaving a balance claimed by Vance of $4,497.00, with interest. The case was prepared and heard before a jury Avhich by its verdict fixed the value of Vance’s services at $5,500.00, subject to a credit of $3,503.00, and without interest. The court entered judgment for $1,997.00. Axton has appealed from that judgment, and has filed seven grounds for a new trial.
After examining appellant’s grounds for a new trial we find: First, the court properly struck from Axton’s, amended ansAver his allegation, that Vance owed him $1,003.00, as Vance in his petition admitted receipt of that, hence this plea tendered no issue. We further find that the court did right in striking from appellant’s answer his plea that Vance was only to receive 8/15 of this fee. As this was an action by Vance for the value of his services, Anderson was not a, party to this suit, and Axton was in no ivise interested in the agreement Vance and Anderson had with each other.
In his petition, appellee had alleged that securing the reversal of this judgment saved Axton $25,935.00. In his answer, Axton admits a saAdng of $21,000.00, but insists that was a gross saving, and that it is to be reduced by certain expenses in order to obtain the net saving. The court properly struck all of that, as the question here is the value of Vance’s services, and what
Second, beginning with the filing of his answer, and continuing throughout the case, Axton constantly endeavored to have the court limit the number of witnesses. This the court properly refused to do. By section 901 of the statutes-, the court could refuse to tax as costs more than the allowance to two witnesses, but we know of no authority under which the court may limit the number of witnesses which a party may introduce upon a controverted question. In section 593 of the Civil Code we find this:
“The court, however, may stop the production of further evidence on a particular point, if the evidence upon it be already so full as.to preclude reasonable doubt.”
That does not support Axton’s contention. It is against, him, and the authorities cited in his brief are also against, him. The court did not err when it ruled against him.
Third, appellant insists that the hypothetical question propounded to the witnesses by whom Vance sought to establish the value of his services, was not properly-drawn, and that therefore the evidence of these witnesses-should not have been admitted. What this question
“The hyphothetical question grouping therein the facts forming the premises upon which the answer of the witnesses must be based must include no facts not shown by some of the testimony to have existed; nor must it omit any relative fact shown by some of the testimony to have existed.”
This court has in numerous cases defined the elements that should be considered in determining the amount of .an attorney’s fee for services rendered. They include the following:
(a) Amount and character of services rendered.
(b) Labor, time and trouble involved.
(c) Nature and importance of the litigation or business in which the services were rendered.
(d) Besponsibility imposed.
(e) The amount of money or the value of property affected by the controversy, or involved in the employment.
(f) Skill and experience called for in the performance of the services.
(g) The professional character and standing of the attorneys.
(h) The results secured.
The witnesses called by Vance qualified themselves by training and experience to appraise the value of these services by reference to their “market value” — that is, to the standard of fees usually charged by and paid to lawyers for services of like character. They show a careful and painstaking study of the various elements proper to be considered in fixing a value upon a lawyer’s services, .and a thorough study of the facts assumed in the hypothetical question. The objections urged against Vance’s hypothetical question are substantially these: That the -question is predicated upon Vance’s testimony theretofore given, and not upon Axton’s- testimony thereafter .given. How could Vance’s counsel frame a hypothetical question based upon the suspicion that Axton might or might not thereafter introduce testimony in his own behalf at variance with Vance’s testimony?
If Axton desired to cross-examine Vance’s expert witnesses upon the basis of some hypothetical question
Again, the hypothetical question is criticised on the idea that the lawyers to whom it was put could not tell the extent or value of the services rendered in the divorce case by Vance’s colleague, Anderson. However, that question does not concern us in this case. Vance was not suing, and he could not sue to recover for Anderson’s services. Finally, we quote, in .support of Vance’s hypothetical question, from the opinion of this court in Kentucky Traction & Terminal Co. v. Humphrey, supra:
“ ..... Hypothetical questions can be based upon any state of facts, that any of the testimony sustains, although there may be conflicting testimony.”
It is true, there were some generalities in this question, as well as some generalities in Vance’s evidence, but we do not feel there was enough to render the evidence inadmissible. To have gone into particulars would have rendered ’both so long that it would have tired and confused the jury, hence we are inclined to view the matter as the trial court did, and as the question did specify with great particularity all essential matters, the admission of this evidence is now approved.
Fourth, the court refused to permit Axton to read the depositions of Judge Horsey and Judge Birkhead, and for this- reason he says he should have a new trial. After testifying to the high character and professional reputa
The failure to incorporate the Vance deposition in the question put to Judge Dorsey or in his answers thereto, left his answers based upon his recollection of a document never presented to the jury. The fundamental basis of Judge Dorsey’s deposition is the Vance deposition, which was never presented to the jury or offered in evidence. This is not an expert opinion upon facts assumed in the question. It is usurping the functions of the jury and forming a judgment upon matters not presented to- the jury. In Aetna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523, this court said:
“The facts upon which the opinion of the expert was desired should have been submitted to him in a question, and his answer 'Should have been his opinion and not his conclusion.”
The deposition of Judge Dorsey violates this fundamental rule. The facts were not submitted to him in a question. He was asked if he had read the court record and if he had read Vance’s deposition, and then asked to tell the jury his conclusion as to the value of Vance’s services. Moreover, Vance’s deposition, which Axton’s counsel did not offer to read to the jury, was taken April 11, 1923, more than two months before the trial, and in giving it Vance repeatedly stated that he was not prepared, in answer to a blanket question by Axton’s counsel, to cover in detail his services; that he expected to
Fifth, appellant contends that this case was prejudiced by the instructions given by the court, and the refusal of the court to give the instructions appellant offered ; but this contention is without merit. The instruc • tions were more favorable to him than to Vance, and we can see no good that can result from an elaboration of this statement.
Appellant’s sixth and seventh grounds for a new .trial, and his amended grounds one and two, all amount to the same thing — that is, the verdict is too large in view of the evidence — appears to have been rendered by the jury under passion and prejudice, and is not supported iby the evidence. He insists that Vance made the record in the former case unnecessarily large and quotes from the opinion:
“The case could and should have been prepared in not exceeding five hundred pages of record instead of more than twenty-one hundred pages, as now made up.”
Vance could not control Mrs. Axton’s counsel in that matter, and it appears that the remark quoted was directed to them. He insists further that Vance put matters into the former record that should have been omitted. The members of this court are familiar with
The very essence of government is the administration of justice. In the administration of justice a trained corps of attorneys is indispensable. We find no greater problems here than the proper disposition of cases that have not been properly practiced in the trial courts, and' are poorly presented here. A circuit judge, coming to a county seat to hold a term of court, would be only temporarily embarrassed if the sheriff: should- die, for the proper authority could soon appoint another, and in like*. manner, a master commissioner, a clerk, a trustee of the-jury fund, or a jailer could be -secured, if these offices;; were vacant; but if there were no attorneys present he could not proceed. A felony case could not be tried, an. indictment could not be returned, a civil case could not-be properly determined, for an attorney cannot be made by mere appointment. Besides innate ability, it takes, years of study, experience, and self-sacrifice to make a
Both judgments are affirmed by the whole court. Judge Dietzman declined to sit because he was a witness in the trial court.