Lilly v. Robinson Mercantile Co.

Kirby, J., (after stating thé facts). It is contended that the court erred in fixing the fee at $50, after having found that, “according to the greater weight of the evidence a fee of more than $50 for the service rendered would be reasonable,” the judgment for that sum being against the preponderance of the testimony and known by the court to be so. The question of what is a reasonable attorney’s fee for services performed in a case where such inquiry arises is usually one of fact to be determined from the weight of the evidence. Rachels & Robinson v. Doniphan Lbr. Co., 136 S. W. (Ark.) 659; Casler v. Byres, 22 N. E. (Ill.) 510-511; Head v. Hargrave, 105 U. S. 49. In the Rachels & Robinson v. Doniphan Lbr. Co., 136 S. W. 659 case, the court said: “In Bell v. Welch, Admr., 38 Ark. 139, it was held that a jury can only assess such fee upon proper proof, which may include the testimony of other attorneys, as to what would he a reasonable fee under the circumstances, taking into consideration the value of the services actually rendered.” In Jacoway v. Hall, 67 Ark. 345, a case of allowance of attorney’s fee to an administrator, the court said: “Being familiar with the services rendered, the judge, in fixing the allowance, could act upon his own knowledge of their value, and we would not overturn his finding thereon, unless clearly erroneous.” In Phoenix Insurance Co. v. Fleenor, 148 S. W. (Ark.) 650, the trial judge fixed' a reasonable fee for plaintiff’s attorney under the statute in a suit upon a fire insurance policy, without hearing any testimony upon the question, and this court held that such finding was not without evidence to support it since, the trial court had the whole matter before him, and was familiar with the case and the service rendered by the attorney therein. It is true but one witness testified in this case as to the value of the service rendered, but his testimony disclosed what that service consisted of, and he being interested in the result of the suit, and it being reasonable to draw an inference from the facts stated unfavorable to his conclusion, it can not be said that it was undisputed. Skillern v. Baker, 82 Ark. 86. It is also true the finding of facts recites that according to the greater weight of the evidence a fee of more than $50 for the service would be reasonable, but it further states that the testimony is advisory only and finds a fee of $50 to be reasonable. This was but an expression of the judge’s opinion that from the testimony introduced an allowance of more than $50 would not have been unreasonable, but that under the circumstances of the case it was the court’s judgment that a fee of $50 would be reasonable for the service performed. The court was sitting as a jury in the determination of the matter and took into consideration the facts of the service performed, as well as the interested attorney’s opinion of the value thereof, hut he was not required to lay aside his own general knowledge and ideas of such service and the value thereof, and should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinion expressed and in no other way could he have arrived at a just conclusion. It may be conceded that the opinion of the attorney familiar with the subject was entitled to great weight, but it was not to be blindly received, it was to be intelligently examined by the court trying the case in the light of his own general knowledge of the subject of inquiry and should control only as it was found to be reasonable, otherwise the opinion of the witness would be substituted for the judgment of the court. The court after taking into consideration the services rendered with the opinion of the witness as to the value thereof and weighing it according to his own general knowledge of the subject of inquiry adjudged that fifty dollars would be a reasonable fee and we find no error in his having done so. The judgment is affirmed.