Haish v. Munday

McAllister, J. The rules of law which govern in the examination of witnesses as effectually prohibit counsel from assuming in their questions any facts which are material to the point of the inquiry, but which are to be ultimately found by the jury, as other rules of law forbid the presiding judge from assuming such facts in his instructions to the jury. In the former ease, the reason of such rules does not rest merely upon the consideration that such assumption of facts might mislead the witness, but upon that of the liability of such assumption or assertion of facts by counsel becoming a substitute in the minds of the jurors for evidence, and thus calculated to mislead them. In the latter case the reason is the same, with the further reason that the assumption by the court in its instructions to the jury of material facts to be found by them, is regarded as an invasion by the court of the peculiar province of the jury. The rules in the former case are so rigidly maintained that they will not permit counsel, even upon cross-examination and when leading questions may be put, to assume any material facts in issue and which are to be found by the jury, or to assume that particular answers have been given contrary to the fact: 1 Starkie on Ev. *p. 188; The People v. Mather, 4 Wend. 249; 1 Greenlf. on Ev. § 434. Keeping in view the rules above referred to, we can scarcely conceive of a more glaring error than was committed in'the court below, permitting the plaintiff’s, against the objection of the defendant, to read to each one of the six attorneys called by the plaintiffs to testify to the value of their services, the so-called hypothetical question, which was of a length sufficient to fill two pages and a half in any of our standard law reports, of a structure wholly incompatible with any conception of a proper hypothetical question, because it was replete with absolute assertions of facts, and even extended into the domain of pure speculation. The great body of it seems to us to have partaken far more of the character of a high-sounding prologue than of that of a plain, simple, comprehensible question to be put to a witness, even though a lawyer, in a trial before a jury. It not only abounded with strong adjectives, with now and then a rhetorical expletive, but embodied a rather vigorous argument to prove the magnitude of the victory, which the plaintiffs had won for the defendant; his immediate gains, his rescue from impending perils, the superior advantages which he thereby acquired over other persons, with whom he had no connection; a victory, whose stupendous results to the defendant, the argument traced down through the next succeeding fourteen years of the uncertain future, showing that the defendant might realize, as a crowning result of the plaintiffs’ services, the great sum of one million one hundred and twenty thousand dollars, if he would but attend to his business during that time. That composition, so made up, and evidently prepared beforehand, with study and deliberation, was read over six times in the hearing of the jury. But' counsel for the plaintiffs below, on argument here, strenuously insisted that the judgment ought to be affirmed; and when we told them that said so-called hypothetical question was clearly improper, they then replied that it was addressed to intelligent lawyers, and that all of them, but one, expressly excluded from their opinions the objectionable matter; that, therefore, if wrong, it could do no harm. That argument is based on the assumption that the jury should fix the amount of the plaintiffs’ compensation solely upon the average result from the opinions given by the several attorneys. Such is not the proper view. When the plaintiff sues for services, upon a quantum merxñt, no specific remuneration having been agreed upon, the amount is of course a question for the jury. 3 Starkie on Evidence, *p. 1307. In determining that amount the jury are not bound, dr necessarily controlled, by the opinions of the attorneys as to the value of the services, but such opinions are to be regarded merely as facts in the case, to be considered by the jury in connection with the other facts and circumstances in evidence. Rose v. Spies, 44 Missouri, 20; Anthony v. Stinson, 4 Kansas, 211. The prejudicial effect predicable upon the reading of the so-called hypothetical question half-a-dozen times in the hearing of the jury, consists in the tendency the performance had to mislead the jury as to what were the facts, and what elements they would take into consideration in fixing the amount of plaintiffs’ compensation. The inquiry was upon a quantum meruit, and it was not what benefits immediate and remote the defendant had derived from plaintiffs’ services, but what was the general worth of those services. Robbins v. Harvey, 5 Conn. 341. The general rule is well stated in Eggleston v. Boardman, 37 Mich. 18, to the effect that the professional skill and standing of the person employed, his experience, the nature of the controversy, both in regard to the amount involved and the character and nature of the questions raised in the case, as well as the result should all be taken into consideration, in fixing the value of the services rendered. The result as mentioned in that statement, means the way in which the litigation terminated; and not, that the party performing the services may trace out ultimate benefits to his client with the view of enhancing the value of his services. The lawyer always claims, that, if he performs his services for his client with the requisite skill and diligence, he is entitled to the full customary charges, even though his client was unsuecessful in the litigation, because he does not warrant success; and the law allows him to do so. So does tlie physician, though his patient dies. 'So when a person sells articles of merchandise, upon a quantum valebant, lie is entitled to recover what they were reasonably worth at the time of the sale and delivery, although the goods were a dead loss to the buyer, there being neither fraud nor warranty on the part of the seller. This being so, is the law so inconsistent, that if a buyer of real or personal property employ a lawyer to draw the agreement, and advise as to its execution, the latter, in a suit to recover the general worth of his services, at the time they were rendered, may go into an inquiry respecting the immediate and remote benefits which the client derived, by means of such agreement ? Can the physician, whose professional services are supposed to have saved the life Of a successful business man, in an fiction upon a quantum meruit for those services, be permitted to make inquiry as to what his patient might acquire during the rest of his natural life, with the view Of fixing the general worth of his services, at the time, and under the circumstances of their rendition? Shall he recover a handsome fortune for so curing a capable, successful patient, when fifty or a hundred dollars would be considered a fair compensation, if the patient had been poor and unsuccessful? So, coming down to the present case, can the plaintiffs, who have sued upon a quantum meruit for professional services in defending two suits, against the defendant in the federal court, the result-of which was adverse to him; for professional services in preparing and advising about an agreement of compromise between their client and his adversaries, be permitted to go into'the fields of speculation, as to how much agency their services in the suits had in-superinducing the compromise, and then as to what immediate and remote benefit their client derived from such agreement of ^Compromise, and "would derive through a period-of'fourteen years, with a view-to showing the general worth of those services, when rendered ? The proposition seems to us,'preposterous. For -the errors pointed out, the-judgment below must be reversed and the cause remanded. Judgment reversed.