192 P. 384 | Nev. | 1920
Lead Opinion
By the Court,
This is a cross - appeal, and it will therefore be convenient to allude to the parties herein as they were designated in the lower court. Plaintiff is an attorney at law, and brought this action in the district court in Elko County to recover from the defendant the sum of $3,500 for legal services alleged to have been performed by plaintiff for the defendant at his request in the case of Mary Alice Capell and Charles S. Capell, complainants, against Wm. T. O’Neil, Richard C. O’Neil, and James P. O’Neil, defendants, in the District Court of the United States for the District of Nevada, in equity, and in the settlement thereof, and in the incorporation of O’Neil Bros., Incorporated. It is alleged in the complaint that the said services were reasonably worth the sum of $4,000, no part of which has been paid, except the sum of $500.
The jury returned a verdict in favor of plaintiff for $3,500 and interest, as prayed for in the complaint.
“In decision on defendant’s motion for a new trial, court ordered that if the plaintiff, on or before December 31, 1919, file a remittitur in the amount of - one thousand dollars, a new trial will be refused, and the verdict to stand for the residue,' to wit, twenty-five hundred dollars; if the remittitur be not filed, court ordered that a new trial shall be granted.”
From this order, and the judgment entered, defendant appeals. Plaintiff appeals from the order only.
Defendant complains of the action of the court in refusing to allow plaintiff to answer questions on cross-examination as to whether, as an expert witness, he agreed with certain decisions of courts of other jurisdictions determining the reasonable value of attorney fees. A number of similar questions were asked, to which objections were sustained by the court. The following is a sample of the general nature of the questions ruled out:
“Q. Do you agree with the court in the case of Carson v. Cockrell, reported in 56 S. E. 1034, where $500 was held to be a reasonable fee for prosecuting a hardly contested suit for damages, and judgment obtained of $4,000 in the supreme court after two trials in the lower court?”
It has been held competent, upon cross-examination to test the learning and accuracy of a witness testifying as an expert and to determine the weight of his testimony, to read excerpts from standard authorities upon
From a careful survey of the record we can say that the facts asserted in the question are sufficiently supported by evidence. Many of the facts assumed are based upon the plaintiff’s testimony, it is true, but were nevertheless relevant and competent to prove his theory of what constituted the facts of the. case. Whether they were really established by the evidence in the case was a question for the jury, and ultimately bearing upon the weight to be given the opinion of the expert witness, resting upon such assumed state of facts.
“Assuming these to be facts, would a' fee charged by such attorney, in the amount of $4,000, be reasonable or unreasonable?”
For this reason defendant insists that the interrogatory is leading. This part of the question was subsequently modified to read substantially thus:
“Now, assuming the facts there to be true, what would you consider a reasonable fee for an attorney with the qualifications of the attorney in question for the services rendered ?”
—and as so modified was propounded to and answered by the other attorneys who testified as witnesses for plaintiff. No further objection was made to the question on this ground. This branch of the question in its modified form was entirely proper, and, while in its original form it fnight have been considered leading iii that the incorporation of the amount claimed by plaintiff was more or less suggestive of the answer required,
“Q. Judge Mitchell, what ordinarily would be the fee, the reasonable fee, for an attorney in attending the taking of a deposition for one afternoon?”
“Q. Judge Mitchell, ordinarily what would be a reasonable fee per diem for an attorney in taking the deposition of a witness in ordinary cases?”
The hypothetical question addressed to the witness contained a statement of services rendered in connection with the matter of taking a deposition of the parties to the suit in accordance with the procedure of the federal district court-. In these statements it was assumed that plaintiff attended said district court at a place far distant from his place of business, for the purpose of settling the matter of taking the deposition, and was away from his place of business for a day at least, and that thereafter, when the hearing of the deposition came on in a city far distant from his place of business, he attended such hearing to protect the interests of his client.
It is contended that the questions were proper on cross-examination by reason of the foregoing direct
“You are hereby instructed that it is very evident that the responsibility, the care, anxiety, and mental labor, is much greater in a case where the amount in controversy is large than where it is insignificant, although perhaps the same questions might be raised in each case, or the more difficult questions arise in the case where the amount was of slight consequence. Nor is this responsibility, care, and mental labor dependent alone upon the number of hours or days which may be given to the preparation or attention to the business in which the services were rendered. This responsibility and mental anxiety is not so imaginative and shadowy that it would not be considered in arriving at a proper compensation to be allowed in fixing the value of the services rendered. For example, it goes without saying that a larger amount is reasonable compensation for the same professional services where the amount at stake is $50,000 than where it is $50.”
This instruction is taken almost literally from the well-reasoned opinion of the court in Eggleston et al. v. Boardman, 37 Mich. 14, concurred in by Chief Justice Cooley, in which the increased care and responsibility
We do not understand counsel for the defendant to challenge the correctness of .the instruction as abstract law. If we correctly apprehend his position, he insists that the evidence does not sustain plaintiff’s contentions that the amount in controversy was large, and that by his ability and fidelity to his client’s interests he secured a large amount for the defendant, by compromise, in excess of what the latter was at all times willing to accept as his just share of the property. From these premises counsel for defendant argues that the instruction was misleading and prejudicial, in that it must have led the jury to believe that the amount in. controversy was large, and the benefits resulting from plaintiff’s services great, contrary to the evidence. The assertion that there was no large amount in controversy in so far as the defendant was concerned, in the suit instituted by his sister and brother against himself and two brothers in the federal court, in which a receivership, accounting, determination of partnership interests, and dissolution of the partnership were asked, is based upon the claim that the defendant, in the answer filed by him, raised no issue regarding any amount, declined to contest, and exhibited a willingness to abide by any terms or settlement made by the sister and other brothers, so long as his claim to a one-fifth interest in the partnership property was recognized. We may concede that this construction may be placed upon the defendant’s answer in the dissolution suit, and that the other evidence in the case bears it out, but nevertheless we cannot say that the defendant did not stand to lose or gain a large amount in the result of the litigation.
“The court instructs the jury that if an attorney, who through inadvertence or mistake devotes time or does work which is entirely useless, he cannot recover any remuneration therefor.”
As appears by the endorsement thereon, the trial • court refused this proposed instruction because he
The case of Leo v. Leyser, 36 Misc. Rep. 549, 73 N. Y. Supp. 941, and Buckler v. Robinson (Ky.) 96 S. W. 1110, cited by counsel for defendant have no application. The facts are different. In the former case it appears that all services rendered the client were entirely useless on account of the inadvertence or inexperience of the attorney. And in the case of Buckler v. Robinson, the court declared that the attorney could not recover from his client because the suit he instituted was wholly unnecessary and useless to her.
The second instruction, offered by the defendant and refused by the court, reads as follows:
“The court instructs the jury that if an attorney, contrary to express instructions of his client, spends time and makes efforts to compromise the client’s case, the attorney cannot recover any compensation for the time so spent or efforts so made, regardless of whether a compromise settlement is effected through the efforts of the attorney or not. An attorney at law is without any authority to compromise his client’s case, unless he is specially authorized by his client.”
This instruction was also indorsed by the trial judge as not pertinent. The .evidence shows without conflict
Inasmuch as he was present, participating in the negotiations, and knew that his attorney was present and actively engaged in bringing about a desired compromise, and made no effort to deter him, the necessary implication is that he sanctioned the activities of the attorney in this regard. True, the defendant testified that he instructed the plaintiff not to go to Salt Lake City (which is denied by the plaintiff, who asserts that defendant told him he might go) ; but this conflicting evidence is on the point of plaintiff’s authority to go to Salt Lake City to be present at the taking of Wm. T. O’Neil’s deposition. The defendant’s testimony in this respect does not prove or tend to prove that he expressly or impliedly directed plaintiff to take no steps to effect a compromise. We do not lose sight of the generally recognized rule, stated in the proposed instruction and affirmed by the authorities, quoted by counsel for defendant, that an attorney at law is without any authority to compromise his client’s case, unless he is specially authorized by his client; but we find a lack of evidence to invoke its operation. The instruction was properly refused.
Insufficiency of the evidence to justify the verdict, and that said verdict is against law, are also specified .in the assignment of errors, as well as the conditional order of the court on the motion for a new trial reducing
“A verdict should not be disturbed on the ground of excessive damages, unless the amount is so excessive as to indicate passion or prejudice.” Hayne, New Trial and Appeal (Rev. Ed.) vol. 1, p. 448.
It is ordered that the conditional order granting a new trial be reversed, and the verdict of the jury and the judgment, so far as they are affected by said conditional order, restored.
Rehearing
On Petition for Rehearing
Rehearing denied.