Reser v. Ziebarth

195 P. 98 | Mont. | 1921

MR. JUSTICE COOPER

delivered the opinion of the court.

This action was brought by the plaintiff in the court below to recover of defendant Ziebarth, as clerk of the district court of Blaine county, and of the Massachusetts Bonding & Insurance Company, as surety, damages resulting from the entry of an unauthorized judgment, and for legal services performed by one R. E. O’Keefe, acting as attorney for the plaintiff in procuring the annulment of the judgment, and defending actions growing out of such entry. The trial resulted in a verdict for the defendants below. Appeal is from the judgment.

The only error appellant complains o£ is the refusal of the trial court to give the jury the following peremptory instruction: [1] “You are instructed to bring in a verdict for plaintiff in the sum of $750.” It is admitted in the brief of appellant that the only issue before the court and jury was the value of the legal services performed by O’Keefe in the proceedings brought to annul the void judgment entered against him. Upon the trial the only testimony concerning the value of the legal services was that given by O’Keefe, an attorney who had theretofore been disbarred by this court, and who had rendered the services on appellant’s behalf, in which he expressed the opinion that they were of the reasonable value of $750, the amount specified in the requested instruction. Plaintiff insisted in the court below, and now insists, that the opinion so given by O’Keefe, being uncontroverted, concluded inquiry upon that question, and that the court below committed reversible error in refusing to so advise the jury.

The defendants’ answer put that point directly in issue; and, being a matter upon which a difference of opinion might exist, it was a question for the jury to decide upon all the circumstances given in evidence and the opinion of a witness on matters involving a profession, aided by their own experience and knowledge of human affairs. The court would have committed reversible error if it had submitted the instruction requested. A witness may express his opinion of the value of his own professional services, or those of another, and thus aid the jury in determining their value. But such testimony is not conclusive as a matter of law. The jury were at liberty to disregard the evidence embodying the opinion altogether, as they did in the instant case. This character of testimony was involved in the case of St. John v. United States F. & G. Co., 56 Mont. 197, 182 Pac. 128, where this court reversed the judgment of the lower court because it had given the jury a peremptory instruction to find the value of professional services to be as stated by the attorney who performed them. For a further discussion of the question, see Whalen v. Harrison, 26 Mont. 316, 67 Pac. 934; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028 [see, also, Rose’s U. S. Notes]; 2 Jones on Evidence, sec. 387, note 81; 20 Ann. Cas., note on pages 56 and 57.

.The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Holloway and Galen concur.