Holland Banking Co. v. Dicks , 67 Okla. 228 ( 1917 )

I dissent from the proposition announced in the fifth paragraph of the syllabus in this case. Section 4535, Stats. 1893 (section 3877, Rev. Laws 1910) reads as follows:

"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action."

As the trial judge had before him, in the nature of the case, in the amount involved, in the duration of the trial, in the skill and ability required and exercised by the attorneys for the defendant, and in the pleadings of the defendant upon which the case was tried if not in any other pleadings, and in the result of the services of the attorneys, etc., sufficient elements of the value of at least a part of the legal services utilized by the defendant, and as all of these elements except the skill and ability actually exercised in the arguments made are shown by the case-made, and it should be presumed as in deference to the action of the judge that he knew the customary charges for such services (Bell v. Barnet, 2 J. J. Marsh. [Ky.] 516, 531, 532), it is assumed that the opinion of the commissioner in so far as it holds that there is no evidence as to the value of the services of an attorney which the defendant was entitled to recover as a reasonable fee is directed against the absence of an affirmative showing in the case-made of the opinions of qualified witnesses as to the customary charges or as to the value of the services shown by the evidence to have been utilized by the defendant in the instant case. As the trial judge had all the elements of value, in at least a part of the services rendered, before him, and as nothing more could have been shown as a basis for an allowance of a fee for so much of such services unless it be the opinion of a qualified witness predicated upon such elements of value it appears that the opinion of the commissioner must be construed as holding that the trial judge cannot exercise his own judgment and reach a conclusion as to the value of such services from such elements of value, but must have the opinion of such witness.

In the instant case it does not appear that either party offered to adduce or were refused an opportunity to adduce the opinions of qualified witnesses as to the amount which would be a reasonable attorney's fee for the defendant, nor that there was any demurrer to the sufficiency of the evidence before the judge, nor that there was any manner of protest against his finding from such evidence as was before him what would be a reasonable fee. Neither party demanded a trial of this question to a jury, and no sort of objection was made to the action of the judge in adjudicating the question as he did until the motion for a new trial was filed, nor then except by the general allegations of "error in the assessment of the amount recovered," and "that the verdict and judgment are not sustained by sufficient evidence and are contrary to law." Assuming for the purpose of discussion only that the defendant was entitled to a trial of this question to a jury, his right to such trial was waived, and is not now involved in this case. As the opinion of qualified witnesses as to the value of services can add nothing to the elements of value in such services from which such inference of the value of the same must be drawn alike by the witnesses and by the judge or jury, but are received merely to aid the judge or jury in making correct inferences, and to furnish them a guide in the event they find themselves unable to reason from such elements of value in the service rendered to such inferred value of the same, such opinion evidence is never legally necessary, although it may be forensically so, to justify or sustain a finding of such value.

For a somewhat, although not perfectly, analogous illustration of the last above statement, it may be remembered that cases often arise in which it is forensically necessary that a litigant have a competent attorney to classify and elucidate the facts and to call the attention of the judge or jury in argument to the inferences that should be drawn and to the reasoning which should be exercised in doing so; but, as the judge or jury must ultimately determine for themselves as far as they can from the evidential facts what inferences should be drawn, and such arguments are merely intended to aid them in doing so correctly, such arguments are never legally necessary to a party's right to prevail in a case, and no one would contend that they are. So the opinion of witnesses, based upon the evidential facts in the case, may be forensically necessary to enable a party to prevail in his case; but such opinions are never necessary to his legal right to do so. Opinion evidence as to values, or as to other matters, is admissible when it reasonably appears to the trial judge that the jury may not possess sufficient general knowledge or have sufficiently well trained reasoning faculties in respect to the question in issue to enable them to arrive at a correct conclusion without the aid of such opinions; but the preliminary decision of the judge that the jurors are in need of such aid is not conclusive upon them; and they are in duty bound to ultimately exercise their own reasoning powers and judgment upon the evidential facts so far as they are able to do so, and thus incidentally determine for themselves whether and to what extent such opinion evidence was necessary and helpful.

Of course, the general knowledge of jurors of such values or their training in reasoning upon such evidential facts may be so inadequate that they may be compelled to rely entirely upon the opinion of witnesses in that regard; but, in so far as it affects their duty and verdict, this quesion must ultimately be determined by them, and not by the judge. The judge merely determines whether they shall have access to this source of supply for such deficiency as they may find in themselves when they come to determine the question; that is, the judge merely determines whether there is sufficient probability that they will need the aid of opinioned evidence to justify its admission for their consideration, although their findings must be within the bounds of reason when tested by the opinion of the judge upon a motion for a new trial. The opinions of witnesses as to the value of legal services is a species of expert or at least of quasi expert testimony.

In 3 Modern Law of Evidence, § 2376, it is said:

"The use of expert testimony has at no time been greatly affected by procedure From the beginning such a witness was introduced almost, it might be said, as an amicus curiae, a friend of the court."

In Id. § 2377, it is said:

"In case of the expert, however, the inadequacy which the witness is to supply is in the reasoning powers of the jury. * * * To put the matter in a somewhat different form, the expert assists the proponent by re-enforcing the soundness of the reasoning involved in his case."

In Id. § 2372, it is said

"Each litigant is entitled to insist not only that reason should be applied to the facts of his case, but also that the application be made by the jury, so far as the latter are competent for the work. The clear danger that a trial by jury may become one by experts is regarded with apprehension by judicial administration. A clear warrant will be required at the hands of the proponent for receiving such testimony."

In Id. § 2171f, it is said:

"A qualified expert to whom certain technical services have been detailed may give his judgment as to their value. * * * Thus a lawyer may testify as to the worth of legal services. * * * The weight of such an inference is to be determined, subject to the limitations prescribed by reason, entirely by the jury. No conclusive effect is accorded to the opinion of the witness, however skilled he may be."

In Id. §§ 2172a, 2173, it is said:

"The jury are not necessarily obliged to follow the estimate of a witness simply because he is uncontradicted. Such inferences are not conclusive. It is to be remembered that the conclusion of a witness as to value is merely secondary evidence displacing, only to the extent that seems to be necessary, the reasoning of the jury upon the primary phenomena narrated by witnesses. It follows that neither the inference nor conclusion of an observer nor the more ripened judgment of the expert relieves the jury of the duty of doing their own reasoning with regard to the facts of the case.

"American courts have gone to very considerable lengths, in this respect, in carrying out the so-called democratic policy of extending the function of the jury at the expense of that of the court. They have been permitted to act of their own knowledge, in the absence of all evidence, as to the fact regarding the value of property or services of a technical nature. For example, the fair price for an attorney's work may be fixed by the jury. The same rule has been applied to the findings of a jury as to the value of other services requiring special skill and experience, e. g., those rendered in the compilation of municipal charters and ordinances."

See 1 Mod. Law of Evidence by Chamberlayne, § 411 et seq., Id. § 1791 et seq., and sections 2371-2373 et seq.; 2 Jones, Commentaries on Evidence, § 392 (394).

In Choctaw, Oklahoma Gulf Ry. Co. v. Deperade,12 Okla. 367, 71 P. 629, where the question arose as to the value of domestic animals, this court held that the "opinions of witnesses are not binding upon a jury, but persuasive merely"; and if they are not binding it must be because they are not necessary to support a finding of value by judge or jury, that is, because the judge or jury may act upon their own opinion based upon the elements of value which would be given the expert to enable him to form an opinion if he should be called as a witness.

In the case of Colley v. Sapp, 44 Okla. 16, 142 P. 989, 1193, where authorities even more precisely in point here than that case are cited, it was held:

"The opinion of witnesses as to the value of services of attorneys is not conclusive upon the jury. * * *"

If such opinions are not conclusive upon them it logically follows that, although such opinions may be forensically necessary, they are not legally necessary to the proof of the value of legal services; and this to be well settled by the authorities.

In Head v. Hargrave, 105 U.S. 45, 26 L.Ed. 1028, where the Supreme Court of the United States condemned an instruction that the jury "must determine the value of the services rendered from the evidence that has been offered before" them, "and not from" their "own knowledge or ideas of the value of such services," that court in an opinion by Mr. Justice Field said:

"It was the province of the Jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone was to say to them that the issue should be determined by the opinions of the attorneys, and not by the exercise of their own judgment of the facts on which those opinions were given. The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business or as to the value of property. So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed; and it was only in that way that they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry. If, for example, the question were as to the damages sustained by a plaintiff from a fracture of his leg by the carelessness of a defendant, the jury would ill perform their duty, and probably come to a wrong conclusion, if, controlled by the testimony of the surgeons, not merely as to the injury inflicted, but as to the damages sustained, they should ignore their own knowledge and experience of the value of a sound limb. Other persons besides professional men have knowledge of the value of professional services; and, while great weight should always be given to the opinions of those familiar with the subject, they are not to be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge; they should control only as they are found to be reasonable.

"As justly remarked by counsel, the present case is an excellent illustration of the error of confining the jury to a consideration merely of the opinions of the experts. Of the five attorneys who were witnesses, no two agreed; and their estimates varied between the extremes of $1,000 and $5,440. Directing the jurors to determine the value of the professional services solely upon these varying opinions was to place them in a state of perplexing uncertainty. They should not have been instructed to accept the conclusions of the professional witnesses, in place of their own, however much that testimony may have been entitled to consideration. The judgment of witnesses, as a matter of law, is, in no case to be substituted for that of the jurors. The instructions tended to mislead as to the weight to be given to the opinions of the attorneys, especially after qualifications of them designed to correct any misconception on this head were refused.

"In Anthony v. Stinson [4 Kan. 211], a question similar to the one here presented came before the Supreme Court of Kansas, and a like decision was reached."

In Spencer v. Collins, 156 Cal. 298, 104 P. 320, 20 Ann. Cas. 49, it was held:

"Expert evidence is admissible to prove the value of an attorney's services, but it is not necessary. The court or the jury may find the value from evidence showing the extent and nature of the services rendered."

In an exhaustive note to this case, by the editor of 20 Ann. Cas. 49, it is said:

"In proving the reasonable value of an attorney's services, it is not absolutely necessary that the evidence of expert witnesses should be given."

See Stanton v. Embry, 93 U.S. 548, 23 L.Ed. 983; Forsyth v. Doolittle, 120 U.S. 73, 7 Sup. Ct. 408, 30 L.Ed. 586.

In Nogtzger v. Thomas Moffett et al., 63 Kan. 354, 65 P. 670, it was held:

"Where the character and importance of the litigation, the labor and time expended by the attorney therein and the result of the same are shown or conceded, the court has a basis for determining the value of the services rendered by the attorney without the opinion of experts as to such values; and where it thus appears that the attorney was entitled to a substantial recovery for such services, the court erred in holding that he was not entitled to recover anything."

Also see Bentley v. Brown, 37 Kan. 14, 14 P. 434, to the same effect.

Some of the foregoing authorities are precisely in point, and the others are evidently based upon the same principle that in my opinion should be applied in the instant case, that is, upon the duty and legal power of the judge or jury to determine the value of professional services from the evidence of the nature of the case, the amount involved, and the extent and character of such services, the result of such services, etc., so far as they find themselves able to do so and upon the legal right of a litigant to recover upon proof of such elements of value in such services without adducing opinion evidence. Ordinarily neither party to such a controversy will leave the judge or jury unaided by opinion evidence; but this does not affect the question of their right to prevail, however much it may affect the question of their chance to do so, or, in other words, the question of the probability of their obtaining a correct decision.

There was no absence of any other species than opinion evidence as to the value of the services which the judge found to be worth $50, as I have already shown; and the mere obsence of such evidence, even if this point had been specifically made by demurrer to the evidence, by motion for new trial, or otherwise, is certainly no ground for reversing the judgment in this respect.

I think the entire judgment should be affirmed.