116 Wis. 35 | Wis. | 1902
The respondent objects to the jurisdiction of this court by reason of a failure of jurisdiction in the circuit court over the appeal from the justice of the peace. The objection is that such appeal was ineffectual because of the affidavit of good faith, which was in the following words:
“G. B. Ladd,, the above-named plaintiff and appellant, being duly sworn, on oath says that the appeal in the above-entitled action is made in good faith, and not for the purpose of delay, and that he is the defendant above named.”
That affidavit was signed and sworn to by Mr. Ladd, the appellant. The objection is without force. The statute (sec. 3754, Stats. 1898) requires merely that the appellant, or some person authorized by him, must file with the notice an affidavit that the appeal is made in good faith, and not for delay. That Ladd was the appellant, appeared beyond doubt or controversy from the entire record. The statement that he was defendant was mere surplusage (Nett v. Serwe, 28 Wis. 663), and could not’serve to neutralize or render ineffective the otherwise complete and sufficient affidavit.
2. Plaintiff assigns as error the giving of several instructions to the jury, namely:
(a) “If you find . . . that the plaintiff, ... as an inducement to be permitted to perform the operation for the defendant, assured or guaranteed relief or the recovery of the infant from that operation, and that the defendant relied upon such statement, . . . you may take those facts and circumstances into consideration in determining the value of the services.”
This instruction evinces such confusion of ideas as is sometimes ascribed to juries, but seems hardly possible to the judicial mind. The slightest reflection makes apparent that the only effect of breach of either a fraudulent or innocent warranty inducing the making of a contract of employment and payment quantum meruit is to defeat any recovery whatever thereon, except where made the basis of recoupment or counterclaim against an agreed price. It could have no possible effect to make either greater or less the actual market value of the service in fact performed. The court had already decided that there was no proof of either broken warranty or unskillfulness and negligence to defeat recovery quantum meruit, and that the only question for the jury was the reasonable value — i. e., customary price — for performing the operation. The quoted instruction invited the jury into that field of meretricious compromise of convictions for dam
(b) “In case you should be of the opinion that the services of the plaintiff were of value to the defendant, you must determine the value of such services, under all the credible evidence in the case, at any amount up to the amount of $100.00.”
While the direction to determine the value of the service upon all the evidence is correct, and is unassailed, appellant complains of the expression, “at any amount up to the amount of $100.00,” as indicating to the jury that there existed evidence to justify any sum between zero and $100; while, as he contends, there was no evidence to support any finding less than $50. We think the instruction not necessarily obnoxious to this criticism. The court may be understood to mean any amount having support from evidence, and, so construed, the duty of the jury was accurately expressed. A cautionary phrase to such effect might well have been added to assure a right understanding by the jury, but we cannot think its omission reversible error. The hypothesis on which this instruction is predicated, viz., “in case you should be of the opinion that the services of the plaintiff were of value to the defendant,” is most unfortunate, and misleading. It certainly tended to confine the jury to consideration of what and how much benefit resulted to the defendant from this fruitless incision into the body of his new-born child, whose death was certain without the operation, but equally occurred, it notwithstanding. That is not at. all the test. So that a surgical operation be conceived and performed with due skill and care, the price to be paid therefor does not depend on the result. The event so generally lies with the forces of
(c) In connection with the last considered instruction, plaintiff complains of another, not very clearly assigned as specific error, though the subject of due exception, which is likely to be important upon another trial, and ought not to pass without consideration. It is as follows:
“The opinions of experts as to the value of the services of the plaintiff are not conclusive upon you. Such opinions are advisory only. You must, in the end, use your own judgment in determining the value of the services, guided by the credible evidence in the case, and assisted by opinions of the experts.”
This instruction is not without apparent support from certain language contained in the opinion in Moore v. Ellis, 89 Wis. 108, 61 N. W. 291, but it is in direct contradiction of what was decided in the later case of Wurdemann v. Barnes, 92 Wis. 206, 207, 66 N. W. Ill, where the court held that, there being no evidence of value of a physician’s services except his own, no question thereon for the jury existed. The same proposition was decided in La Chappelle v. Warehouse & B. S. Co. 95 Wis. 518, 526, 70 N. W. 589, where an expert having testified to a certain value, and no other evidence having been given, it was held that the trial court rightly instructed the jury to adopt that value. This seeming conflict between our own decisions largely disappears, however, upon a full understanding of the situation to which was applied the language used in Moore v. Ellis. There the evidence had taken a wide range, and there was extreme divergence be
“There can be no presumption of law concerning the value •of a surgeon’s services, and there is no presumption that a jury can ascertain it without testimony of some kind from persons knowing something about such value. . . . We •ean see no sufficient reason for the suggestion that all of this [expert] testimony might be disregarded, and there is no rule which would allow the jury to' entirely ignore the testimony, and at the same time to form an independent conclu-sion without testimony upon a matter which required proof*42 beyond tbeir conjectures or their opinions. . . . There can be no safety to any one if juries are to use their own unguided views on such matters.”
In Walbridge v. Barrett, 118 Mich. 433, 76 N. W. 973, there was presented an action for attorney’s fees in conducting a suit for personal injuries. There it was held error to-refuse an instruction quite similar to that given in the present case. The court said:
“Had there been no testimony of the value of plaintiffs services aside from that of the attorneys, the case would undoubtedly have been ruled by Wood v. Barker, 49 Mich. 295, 13 N. W. 597; but there was other evidence bearing upon the value of the services. [Reciting rendition of bills, agreements as to per diems, and conflicting proof of details of the; work done.] Under these circumstances the rule in Wood v. Barker was not applicable, and the court' should have instructed the jury that the opinions of the attorneys were not conclusive.”
In line with this latter case and with the real decision in Moore v. Ellis, 89 Wis. 108, 61 N. W. 291, are the cases of Head v. Hargrave, 105 U. S. 45, and The Conqueror, 166 U.S. 110, 132, 17 Sup. Ct. 510. In those cases it is pointed out that the testimony of experts was, at the best, not to the fact of value, but to the fact of their opinions, and therefore that the fact of value is one to be deduced by the jury from the various evidentiary facts presented before them, inclusive of the fact that certain expert persons have certain opinions thereon. In the absence of such conflicting evidentiary facts, however, there seems to be no answer to the logic of Wood v. Barker that jurymen, as such, have no- presumptive knowledge upon the subject of the value of professional services, and must be guided by the evidence offered upon the trial, and consequently are not at liberty to disregard the same and enter the field of their own uninstructed conjecture. That view seems to have been tacitly adopted by this court in the two cases above cited, — Wurdemann v. Barnes, 92 Wis. 206,
3. Error is also assigned upon refusal of several of plaintiff’s requests for instruction. These either were sufficiently-covered by the general charge, or were not justified by the evidence, except, perhaps, the fourth, which was to the effect that plaintiff was not precluded from recovering more by reason of having originally sent his bill for but $50. Such instruction would, of course, have correctly stated the law, and might well have been given to- assure full understanding by
By the Court. — Judgment reversed, and cause remanded for a new trial.