Terrill v. Fotheringham

Mitchell, J. — William Allen Mears, deceased, was a resident of Seattle, and during his last illness went to San Francisco, where he received the professional services of his friend, Dr. George M. Terrill. The doctor sued the executor of the Mears’ estate on account of services, which consisted not of unit prices, but an aggregate sum, and not being satisfied with the amount the trial court allowed, appeals. The trial was without [35] a jury, and there is no dispute as to the facts or findings, except as to the value of the services. Appellant applied for a commission to, take the depositions of five physicians in San Francisco as to the value of the services. The court refused except for three, other than appellant, and this is assigned as error. It is apparent that this is a matter within the discretion of the trial court with reference to something that is neither exact nor scientific. It possesses no element of knowledge, hut consists of pure opinion. Such expert evidence, even if uncontradicted, is not conclusive, hut merely advisory — only a guide. Swope v. Seattle, 36 Wash. 113, 78 Pac. 607; Moore v. Ellis, 89 Wis. 108, 61 N. W. 291; Ewing v. Goode, 78 Fed. 442. In this connection, it may be noticed that, as against these three, there were two witnesses for the respondent. Two physicians of Seattle testified for respondent, and this is charged as error, on the theory that a physician residing elsewhere than San Francisco was not qualified to testify, since the services were rendered there. Whatever may be the general rule in this regard is not controlling here, for an understanding of the nature and kind of the disease, known of by all physicians in respect to the care and attention it exacts from the attending physician, could with ease be and was testified to by these two physicians, thus being of help to the court in weighing and appropriating the advisory testimony of all as to the value of the services —the ultimate concern of the court. If, in'testifying, they, who must have some general idea of such values, do express themselves as to the amount, how shall it be well claimed as error, for at most it would in this respect be only immaterial, a quality which, in cases tried to the court, will find no reflection in the judgment reached. There was no mistake of law by the court in [36] the trial, while as to the amount allowed, we are quite convinced it is liberal. Affirmed. Main, C. J., Fullerton, Parker, and Tolman, JJ., concur.