Heblich v. Slater , 217 Pa. 404 ( 1907 )

Opinion by

Mr. Justice Potter,

This was an action of assumpsit brought by Rosa Heblich, executrix of N. Heblich, deceased, against Harry P. Slater, to recover for professional services rendered in his lifetime by Mr. Heblich, who was a member of the Schuylkill county bar, to the defendant. There was no dispute as to the employment of Heblich by defendant or the services rendered. The single question tried was the value of the services. Five of the assignments of error raise the question, whether in a suit by an attorney at law to recover for services rendered, evidence is admissible of the amount paid to another attorney, who rendered service in the same case.

The cause in which the services were rendered, for which recovery was sought, was the contest of the will of Mrs. Anna Slater, mother of the defendant, dated May 22, 1894, by which she had devised and bequeathed her entire estate to defendant. Certain beneficiaries under a prior will, dated March 23, 1894, filed a caveat to the will on the ground of want of testamentary capacity by the testatrix, and undue influence. The contest was carried into the orphans’ court where an issue devestavit vel non was awarded; That issue was tried in the common pleas court, resulting in a verdict for the will, and judgment thereon was affirmed by this court: Slater v. Slater, 209 Pa. 194. Mr. Heblich took part in the litigation from the outset until his death, which occurred after the trial, and before the appeal was argued in the Supreme Court. In the early stages of tbelitigation John W. Ryon was associated with him as counsel for defendant. Mr. Ryon died before the issue in the common pleas came to trial, and John F. Whalen was then associated with Heblich in Ryon’s place. Mr. Whalen remained counsel up to to the time of Heblich’s death, and afterwards until the final decision by the Supreme Court. He testified that he charged and received from defendant $4,000 as fees for his services. Other witnesses were permitted to take this fact into consideration in fixing the value of Heblich’s services, and the jury were instructed that they might consider it in arriving at their verdict. We think this evidence should have been excluded. The value of Mr. Heblich’s services was in issue, and not that of the witness. It was apparent that they were not each performing the same class of service. One was largely engaged in preparing the case for trial, in searching for evidence, and in producing it, and the authorities for use during the trial. The other seems to have confined his efforts principally to discharging the duties of what is ordinarily known as a trial lawyer. The services of one seem to have been confined to preparation for and attendance upon the hearings in the lower courts, while the other was responsible for the preparation and conduct of the case also in the appellate court. Not only did the nature of the services rendered seem to differ, but the professional ability and standing of the two men-were not shown to be the same. What would be a reasonable fee for one might be wholly inadequate for the other.

In Playford v. Hutchinson, 135 Pa. 426, this court held that in an action by an attorney at law to recover for professional services, rendered in the preparation and trial of a cause, evidence of what services were rendered, and fees charged by other attorneys employed upon the same side with plaintiff, is irrelevant and incompetent. In that case the testimony was offered to show that the claim was for more than the services were reasonably worth. But if such testimony is inadmissible as against the attorney, it must also be excluded when it is in his favor. The true ground upon which its exclusion is based is that it would raise collateral issues. In Calvert v. Coxe, 1 Gill (Md.), 95, this question arose, and the court held, “that what was paid to or demanded by one attorney was not evidence in the cause. We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded, a given sum for his services. What is the usual and customary compensation for services of a like kind is admissible testimony, but what was paid to any particular individual, standing per se, is in our opinion inadmissible.” Under the authorities, the professional standing of an attorney seems to be a proper element to be taken into account, as affecting the value of his services. If this be so, how could the amount paid to one attorney be evidence of the value of the services of another ? In certain routine matters, one competent lawyer may serve as well as another. But in other phases of litigation requiring the exercise of keen judgment and delicate perception, there may be no comparison between the relative abilities of two men. It has been held that in an action by an attorney to recover for professional services, it is incompetent to prove the value of- his services in another suit: Hart v. Vidal, 6 Cal. 56. To determine the value of the testimony as to the compensation paid to Mr. Whalen would require a comparison of the nature of the service he rendered, with that bestowed by Mr. Heblich, and their relative professional standing and ability ; and also an inquiry into the reasonableness of the charge made by Mr. Whalen. This would raise collateral matters, and involve issues not concerned in this case.

The first, second, third, fourth and fifth assignments of error are sustained.

Another question is raised by the sixth and seventh assignments. Subsequently to making her will, which was the subject of the litigation, defendant’s mother conveyed to him by deeds dated May 9, and July 9, 1894, certain valuable real estate for a consideration of one dollar and natural love and affection. This fact appeared in evidence, and the court instructed the jury that the property thus conveyed was indirectly concerned in the will contest, which settled all dispute as to its title. In his general charge, the trial judge said: “ Had the other side won, in all human probability, as testified to by counsel, who represented that side, they would have brought another suit to set aside those deeds that have been offered in evidence, so that indirectly, as a matter of law, the real estate was indirectly involved in this transaction. As you have heard from the testimony in the case, the value of that real estate was anywhere from fifty to seventy thousand dollars.” The question raised by these assignments was whether the court erred in instructing the jury that the title to the property so conveyed was indirectly settled by the trial of the issue d. v. n. and in allowing them to take that fact into consideration in fixing the amount of their verdict.

As a general principle, the magnitude of the interests involved and the responsibility assumed are properly to be taken into consideration in fixing compensation. “ Evidence to show the nature and importance of the controversy in which the services were rendered, what results depended upon it in other matters, and how other matters affected it and increased its gravity, is proper upon the question of the value of the services : ” Weeks on Attorneys at Law (2d ed. 1892), 681.

And yet, in the present case the attack which the counsel for defendants in the will case were called upon to meet does not seem to have been very formidable. It can hardly be said to have been at any time a doubtful case. As this court said before: “ The burden of appellant’s contest against the will was that it was procured by undue influence, and a number of matters were presented in evidence which might have tended to corroborate the inference had there been any basis of fact to corroborate. But there was not a scintilla of evidence that tended directly and explicitly to establish the fundamental fact: ” Slater v. Slater, 209 Pa. 194.

It is possible that the decision of the issue on the will, in favor of defendant, prevented additional litigation, and that aspect might perhaps be presented to the jury as something to be considered in fixing the value of the service. But if this was done, the jury should at the same time have been cautioned against attaching much weight to this feature because, as the result showed, there never was any material fact upon •which to base the attack made upon the will. Defending a practically impregnable position is not so difficult as the leading of a forlorn hope. The burden in the litigation concerned was decidedly upon the other side, who sought to invalidate the will. The attack had so little apparent justification that the suggestion that the title to valuable real estate was indirectly involved in this case, was of doubtful propriety.

We do not feel, however, that the qualification of defendant’s fourth point for charge, or the answer to plaintiff’s fifth point, presents sufficient cause for reversal. But by reason of the errors set forth in the first, second, third, fourth and fifth specifications, the judgment is reversed with a venire facias de novo.