Cosgrove v. Leonard

134 Mo. 419 | Mo. | 1896

DIVISION TWO.

Burgess, J.

This is an action for services rendered defendants by Cosgrove & Johnston, a law firm composed of John Cosgrove and James H. Johnston. Plaintiffs sue for the sum of $4,400 for legal services rendered defendants at their request, the sum of $340.15 for moneys, paid out and expended in defraying traveling and other necessary expenses, in and about defendants’ business, less $142.03 with which they credit defendants. The answer is a general denial.

The case was tried to a jury who rendered a verdict in favor of plaintiffs for the sum of $2,368.03.

In due time plaintiffs filed their motion to set aside the verdict and for a new trial, assigning, among others, the following grounds therefor:

“L For the reason that the verdict is against the evidence, against the weight of the evidence, and against the law under the evidence.

“2. The verdict is for the wrong amount.”

“9. The verdict of the jury was not supported by any evidence in the case.”

The motion was overruled and plaintiffs appealed.

The services sued for were rendered in a suit brought by the firm of Cosgrove & Johnston, attorneys at law, in connection with Messrs. Draffen and Williams, also lawyers, for defendants against the New York, Lake Erie & Western Railway Company for $50,000 damages, sustained by defendants in this suit, for injuries to a herd of cattle while in transit over said railroad in consequence of 'its negligence as common carrier.

The suit was brought in the circuit court of Saline county. A change of forum was subsequently granted to the United States circuit court for the western district of Missouri, at Kansas City. There a trial was had which resulted in a verdict in favor of defendants herein against the company for $26,983.60.

The verdict was thereafter set aside on motion of said company, and by agreement of parties the venue was changed to the central division of the western district of Missouri of said United States court, where another trial was had resulting in a verdict for defendants herein in the sum of $55,880. The ease was then appealed to the supreme court of the United States where the judgment was affirmed for the sum of $44,000, which was thereafter collected by defendants in this suit.

Several lawyers testified as witnesses in the case as to the value of the services rendered by Messrs. Cos-grove and Johnston, some of whom had personal knowledge of the services rendered, and no witness placed the value of the services at less than $4,400.

The only question that we have to deal with herey is with respect of the action of the court in overruling plaintiff’s motion for a new trial on the grounds stated.

It has been uniformly held by this court that where a verdict is supported by substantial evidence it‘will not interfere with the action of the trial court in overruling a motion for a new trial on the ground that the verdict is against the weight of the evidence. Nor will it interfere where the evidence is conflicting. It is only in case there is no substantial evidence to support the' verdict that it will reverse the action of the trial court in overruling a motion to set aside a verdict ánd to grant a new trial on that ground.

The question, then, with which .we are confronted, is as to whether or not there was any substantial evidence to support the verdict in this case. With respect to the value of the services rendered, the evidence was all one way, but the question is how such evidence, being what is known as expert' evidence, was to be considered by the jury. If as evidence to facts, the verdict was clearly and. manifestly wrong and should be set aside, but, on the contrary, if the jury had the right to consider the evidence as merely advisory, and were themselves the judges of the value of the services, a different question is presented.

Rose v. Spies, 44 Mo. 20, was an action against' Spies, an attorney, for money collected by him for-his client, in which he claimed the right to retain of the amount collected $3,005, as compensation for services rendered by him in the case. Upon a trial in the circuit court the jury awarded him $1,250, for his services, and from the judgment rendered on the verdict he appealed. Several members of the bar were sworn as to what would be a reasonable compensation, all of whom placed it above the amount awarded by the verdict of the jury. The court held that the jury were the proper judges of the value of the services renddred, “and that, in considering the reasonableness of such compensation, the jury might take into consideration all the circumstances of the Case, and were not bound by the opinions of witnesses experienced as experts but that those opinions should be considered in connection with the other evidence in the case.” A similar rule is announced in State v. Witten, 100 Mo. 525; City of Kansas v. Street, 36 Mo. App. 666; W. U. Tel. Co. v. Guernsey, etc., Co., 46 Mo. App. 120, and in Head v. Hargrave, 105 U. S. 45.

The case last cited was an action brought by the plaintiff to recover the sum of $2,000 alleged to be owing by the defendant for professional services as an attorney. The answer like the case at bar was a general denial. On the trial the plaintiff testified to the rendition of the services. Five attorneys at law also testified to the value of the services, three in behalf of plaintiff,and two on the part of the defendant. They differed as to their value, some of them placing the value at $5,440, the lowest at $1,000. The jury gave a verdict.in favor of plaintiff for $1,800, upon which judgment was rendered. Plaintiff, being dissatisfied with the verdict and judgment, took the case to the United States supreme court.

The court said: “The only question presented for our consideration is whether the opinions of the attorneys, as to the value of the professional services rendered, were to control the judgment of the jury so as to preclude them from exercising their ‘own knowledge or ideas’ upon the value of such services. That the court intended to instruct the jury to that effect is, we think, clear. * * * It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone, was to say to them that the issue should be determined by the opinions of the attorneys, and not by the exercise of their own judgment of the facts on which those opinions were given. The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business, or as to the value of property.” That ease was followed by the supreme court of South Carolina in the recent case, of Jones v. Fitzpatrick, 24 S. E. Rep. 1030.

It thus séems that the expert evidence as to the value of the services sued for was merely advisory, and that notwithstanding such evidence the jury were the proper judges of the. value of such services. It can not under such circumstances be held that there was no substantial evidence to support the verdict. The judgment is affirmed.

Gantt, P. J., concurs. Shebwood, J., dissents.

IN BANG.

Peb Cxjbiam.

The foregoing opinion of Buegess, J., handed down in division number two, is adopted as the opinion of the court in banc, Babclay (in the result), Maceablane, and Robinson, JJ., concurring with-Buegess, J., therein. Bbace, C. J., and Gantt and Shebwood, JJ., dissenting. The judgment of the circuit court is therefore affirmed.