Malone v. Gerth

100 Wis. 166 | Wis. | 1898

Pinney, J.

We think tbat it cannot be maintained, in any fair view of tbe evidence, tbat tbe defendant was entitled to have a verdict directed in her favor, and tbe court rightly refused tbe defendant’s request.

Our attention has been directed to tbe following passage in tbe charge of the court to tbe jury assigned as error: “Now, in arriving at your verdict, gentlemen of tbe jury, you must take in evidence all the evidence, and only tbe evidence. You must pay no attention to comments on tbe part of counsel in this case or of tbe court. And, in running ■over tbe evidence, it is for you to say what weight shall be given to the testimony of each person that has been on the .stand. You have seen them yourselves; you have seen the way in which they testified; you are the judges of their candor and fairness; and you are the only judges as to the weight that shall be given to the testimony of each of these parties.” No proper exception appears to have been taken to the passage complained of. The charge must be taken •as an entirety, and judged by the effect it was likely to produce as a whole. Ye cannot say that, under the circumstances, there is reversible error in the charge in respect to paying no attention to comments on the part of counsel or the court. We see no reason to suppose, in view of the result, that the defendant was prejudiced by it.

The court set forth in its charge to the jury the respective contentions of the parties, and said: “The contract as to what they should get for their services in foreclosing this mortgage is simply a question of fact for you to determine, under the evidence.” The principal question in this case is whether the plaintiffs used reasonable care and diligence, as attorneys, in and about their employment by the defendant to foreclose her mortgage, in conducting the business with which she had intrusted them. The court properly instructed the jury, as already stated, that “ an attorney must be held to undertake to use a reasonable degree of care and skill, and to possess to a reasonable extent the knowledge requisite to a proper performance of the duties of his profession, .and, if injury results to the client as a proximate consequence of the lack of such knowledge or skill, or from the failure to exercise it, the client may recover damages to the extent of the injury sustained; but we are all human beings, and attorneys are not responsible for errors and mistakes that they make. If an attorney is fairly capacitated to discharge the duties ordinarily incumbent upon one of his profession, and acts with a proper degree of attention, and with reasonable care, and to the best of his skill, he will not be responsible. He must, of course, act toward his client with integrity and honesty.” 1 Am. & Eng. Ency. of Law, 961, 962. This statement was sufficiently full and accurate to meet the requirements of the case, and to enable the jury to properly appreciate and perform their duty in respect to it. The facts were left quite fairly and broadly by the court to the jury as to what the contract between the parties was, and what, if any, damages the defendant was entitled to, within the rule of liability stated.

A good many considerations of a technical character were urged, which do not require particular notice. No material error appears to have intervened, and we perceive no sufficient reason for disturbing the judgment.

By the Gowrt.— The judgment of the county court is affirmed.