Dixon v. People , 63 Ill. App. 585 ( 1895 )

Opinion

per Curiam.

The appellant, a physician and surgeon, was brought into the Circuit Court of Sangamon County by the ordinary process of subpoena to testify as a witness in behalf of the defendant in a case then pending against the city of Springfield, brought to recover damages for personal injuries, which the plaintiff alleged she had received from a fall upon a defective sidewalk.

The appellant knew nothing whatever of the facts of the case, and he declined to answer a hypothetical question propounded to him calling for his professional opinion upon the assumed state of facts mentioned in the question, except upon the payment of a fee of §10.

He persisted in such refusal, and the court ruled he was in contempt and assessed a fine against him.

It is conceded the fee demanded was reasonable in amount and no question is raised in the brief as to the power of the court to inflict a fine as punishment for contempt in refusing to answer any question which the law required the witness to answer, and therefore the sole question presented is, could the appellant, under the circumstances, lawfully decline to give his professional opinion without reasonable compensation ?

As far as we are advised, the question has never been directly passed upon in Illinois.

Mor can any rule be drawn from the current of judicial decisions in other jurisdictions, or from a concurrence in the views of text writers, so widely at variance and so directly in conflict are the opinions of different courts and law writers upon the subject.

It is not contended the reasonable compensation demanded by the appellant could be taxed as costs, but that the party desiring his professional opinion should be required to compensate him therefor before the law should compel him to express that opinion for the benefit of such party.

We think the court ruled correctly in holding the law required the witness to answer the question.

The statute has fixed the compensation to be paid all witnesses, and the law requires every person, without regard to his calling or engagements, to appear as a witness when duly subpoenaed and to accept as full compensation the statutory allowance, however inadequate it may be.

The administration of justice in the adjustment of the contentions growing out of the business affairs or concerning mere private, personal or property rights of its citizens, is one of the most important sovereign duties devolving upon the State. Upon the performance thereof depends the public peace and tranquillity, and the safety and security of the property, reputation, person and family of every private citizen. Every citizen is therefore deeply interested in the proper discharge of that duty. It can only be discharged through the medium of judicial tribunals. Without the power to compel witnesses to attend and disclose facts in their knowledge pertinent to these contentions, these tribunals are powerless to perform their functions. Ho distinction can, we think, be drawn between different kinds of knowledge, nor can a witness decline to make known facts which have come to his knowledge, either by observation or study and experience, upon the ground he can use such facts or knowledge for his pecuniary benefit in the business affairs of life, when the disclosure thereof is important to the attainment of justice in the courts.

Ho reason is perceived why compensation beyond that fixed by the general laws of this State should be allowed to this class, or to any one class of experts, unless it is allowed to every other class, of which there are many. Some works on expert testimony enumerate as many as seventy classes of expert witnesses.

To hold that each member of these different classes of witnesses may lawfully demand that litigants shall arrange for the payment of reasonable compensation before he can be compelled to disclose in open court, facts in his knowledge relating to the right and justice of causes there pending for determination, would be impracticable, and would often operate to subject a litigant to financial burdens so great as to practically deny him a hearing in the courts; would tend to make the administration of the law depend upon the financial ability of the suitors to compensate witnesses in order to have the benefits of facts in their knowledge, and to bring such testimony into discredit, as having been purchased, and to attach scandals and grave suspicions to expert witnesses and expert testimony.

Kor does the rule requiring experts to testify for legal fees, deprive the witness of his property for public use.

Knowledge gained by study, observation and experience is not property within the meaning of the word as used in section thirteen, article two of the constitution, wherein it is provided that private property shall not be taken or damaged for public use without just compensation.

The word, in its appropriate sense, means tangible things and rights which accompany or are incident to the use, enjoyment or disposition of such things. See authorities collected in Mote 1, page 294,19th volume Amer. & Eng. Ency. of Law.

In C. W. I. R. R. Co. v. E. C. R. W. Co., 115 Ill. 385, it was said, “ property itself, in a legal sense, is nothing more than the exclusive right of possessing, enjoying and disposing of a thing.”

The ordinance of 1787 has no operative force in this State, except so far as its principles are embodied in the constitution. The People, etc., v. Thompson, 155 Ill. 451.

The judgment is affirmed.