276 N.W. 661 | Neb. | 1937
This is an appeal from the district court for Hall county, Nebraska, wherein the jury returned a verdict for the plaintiffs below in the sum of $8,524, for legal services and expenses, from which verdict and judgment thereon the defendant appealed to this court on two items: First, for services in aiding the reorganization of the defendant company, and, second, for legal services in the case of William Ritchie and others against Pathfinder Life Insurance Company, total amount of which is $5,000. The fees for other services rendered by the plaintiffs, in the amount of $3,524, are not a part of this appeal.
The plaintiffs’ amended petition alleges services performed in the reorganization of defendant company, and for legal services in the case of William Ritchie and others against the company; that the plaintiffs are and have been
The evidence reflects the following: D. O. Beckmann, clerk of the district court for Hall county, identified several exhibits in the case of Ritchie against the defendant company and the pleadings filed by the defendant company in such case. W. A. Prince, one of the plaintiffs, testified that he was 72 years of age, was admitted to the practice in 1888; practiced at Grand Island, and enumerated the different courts in which he practiced. He first contacted the defendant company between the 10th and 15th of April, 1935, when he was interviewed by Mr. Pletcher, then presi
During the progress of the Ritchie litigation and before the reorganization, the company was losing greatly in its membership and had lost approximately 1,000 members. Mr. W. A. Prince persuaded Mr. Kaufmann to accept the
The appellant by its testimony endeavors to minimize the value of the services of the plaintiffs, so far as the Ritchie case is concerned, in that all the necessary work had been performed by Mr. Ritchie and his associates to complete the objective sought for in said litigation, contending that meetings had been had by Mr. Ritchie and others with the director of insurance, relative to the resignation of certain directors and the president of defendant company. The Ritchie case had developed to the point where a restraining order had been issued, the case continued, and an adjudication thereof had, so far as the purchase of the Kansas insurance company and the recovery of certain fees, paid to attorneys in that matter, were concerned. However, the case was not dismissed. The appellant contends that the only duty for the plaintiffs to per
The appellant contends that the court erred in overruling defendant’s objection to a hypothetical question, propounded to N. P. McDonald, L. B. Stiner and James M. Lanigan, attorneys, who testified to the value of services rendered by the plaintiffs and gave their opinion, as experts, of the reasonable amount of fees that should be allowed for such services. The hypothetical question covers many pages in the record, details extensively the services alleged to have been rendered by the plaintiffs, and will not be repeated herein except for parts thereof which the appellant contends are erroneous.
Appellant contends, first, that the hypothetical question erroneously conveyed the impression that plaintiffs were responsible for the adjustment of all of the matters pertaining to the Ritchie case, for the reason that the evidence showed that the plaintiffs were not employed by the company or by any one in connection with the transaction until the Ritchie case had arrived at a point where the one remaining thing to be done was to dismiss it; second, that the hypothetical question stated that the plaintiffs were employed on April 9, 1935, and that they had familiarized themselves with certain pleadings and had worked on the Ritchie ease continuously from April 9, 1935, to April 29, 1935, whereas the evidence showed that plaintiffs were first employed on April 9 by one Frank Pope, a director of the company, personally, for investigation of the rights of Mr. Pope and his liability; that the plaintiffs’ employment was first discussed on April 13, 1935, and the employment by resolution was had on April 23, 1935; and, third, that the hypothetical question assumed that plaintiffs were exclusively responsible for the selection of Mr. Kaufmann, president of the company, and the directors, and for the resignation of certain officers and directors, whereas, in fact, Ritchie and other plaintiffs in the Ritchie case, cooperating with the defendant company, had or received the agreement to resign of all the officers, and had selected
The evidence reflects that Mr. Prince, senior, did talk with certain directors of the company on or about the 13th of April, 1935, desired to take over exclusive control of the litigation in question if employed by the company, and that it was agreed that a formal resolution to this effect would be passed, which was done on April 23, 1935. The evidence further reflects that W. A. Prince and David Kaufmann were personal friends; that the company was involved in serious litigation at the time of plaintiffs’ employment. Several conferences were had with the president of the chamber of commerce, with Mr. Kaufmann, with the attorneys interested in such litigation, and the evidence further reflects that Mr. Prince in no instance took credit for anything further in the Ritchie suit than as contended for by defendant, except that he did insist that he performed services of value to the defendant, a local company with which he was thoroughly familiar, knew most of the parties and was acquainted with the conditions to such an extent that his services were of value. The record does not disclose that Mr. Prince represented Mr. Pope, a director, and it is shown by the evidence that he did go over the pleadings, the petition of the plaintiffs in the Ritchie case, the supplemental petition, and all other pleadings incident to said case when such were called to his attention by Mr. Pope. Mr. Prince furnished and presented the plan as contended for by him and had it accepted, which plan stabilized the company and satisfied ■ all concerned. He made no statement that he had anything to do with the Ritchie case, so far as the return of the $207,000 and the 5,000-dollar attorney’s fees were concerned, and, obviously, such part of the hypothetical question was for the purpose of showing the nature of the litigation still pending. The company was solvent; even so, the conditions, as they existed at the time of plaintiffs’ employment, could still place the company in a chaotic condition where the appointment of a receiver would be necessary, and it must
The value of plaintiffs’ services was a question for the jury. The testimony of the plaintiffs and of the expert witnesses in this regard fixed the minimum and maximum fee for all services rendered from $8,500 to $15,000. The two items for which the plaintiffs seek recovery are so closely connected that to separate them and make a distinct charge for each item would be difficult. The services should be considered in their entirety, so far as the Ritchie case and the reorganization of the defendant are concerned, because each is a part of the other.
In Ward v. Aetna Life Ins. Co., 82 Neb. 499, 118 N. W. 70, it was held: “Error is not committed in permitting a hypothetical question which fairly reflects the case as made by the plaintiff because other facts afterwards established by the defendant’s evidence are not included in the question.” And in Malcolm v. Evangelical Lutheran Hospital Ass’n, 107 Neb. 101, 185 N. W. 330, it was held: “It is sufficient in propounding a hypothetical question to limit the question to the statement of facts containing the idea upon which the evidence is elicited or brought out.”
“If the evidence is conflicting as to a material matter, the hypothetical question asked the expert witness is not objectionable because it recites such matter as a basis for his opinion. It is for the jury to determine whether such an hypothesis is warranted by the evidence.” Van Dorn v. Kimball, 100 Neb. 590, 160 N. W. 953.
“Hypothetical questions propounded to an expert, if so framed as to fairly and reasonably reflect the facts proved by any of the witnesses in the case, will be sufficient, provided the subject is one proper for expert testimony.” Landis & Schick v. Watts, 82 Neb. 359, 117 N. W. 705.
The hypothetical question in the instant case examined and found to fairly reflect the facts either admitted or proved by the witnesses, and to contain substantially the undisputed pertinent facts in the case.
“In proving the reasonable value of an attorney’s services it is not absolutely necessary that the evidence of expert witnesses should be given. The fact may be sufficiently established by the evidence of other witnesses, and by the circumstances- of the case.” Annotation, 20- Am. & Eng. Ann. Cases, p. 55, and cases therein cited.
“It is well settled that the opinion evidence of expert witnesses, as to the value of an attorney’s services, is not conclusive; nor is it binding either on the court or on the jury. But such evidence is to be taken into consideration, with all the other evidence in the case, in arriving at a conclusion as to the just value of the services performed.” Annotation, 20 Am. & Eng. Ann. Cases, p. 56, and cases cited therein.
“The importance of a cause to a client is worthy of consideration in determining the value of the professional services of the attorney employed therein.” Selover v. Bryant, 54 Minn. 434, 56 N. W. 58.
In Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. 417, it was held: “In a suit by an attorney to recover the value of his services, he may show by his own testimony his experience and knowledge, and give his judgment as to such value.”
In determining the value of attorney’s fees, the following elements should be considered: The importance and result of the case; the difficulties thereof; the degree of professional skill, diligence and ability required and exercised; the experience and professional standing of the attorney, and the prominence and character of the parties where they affect the importance of the litigation; the questions of law raised, and the time and labor necessarily required in the performance of duties. See 5 Am. Jur. 379, sec. 198; In re Estate of Rhea, 126 Neb. 571, 253 N. W. 876; 6 C. J. 760.
In Dworak v. Shire, 126 Neb. 474, 253 N. W. 655, it was held: “In a law action, where the evidence is in substantial conflict, the decision of fact is for the jury.”
For the reasons given in this opinion, the judgment of the district court is hereby
Affirmed.