Senneka v. Bickle , 199 Minn. 345 ( 1937 )

The district court rules provide (see 175 Minn. xli, No. 11) that there must be "special circumstances" in order to allow expert witness fees of more than $10 a day to be taxed for the attendance of an expert witness. In Bekkemo v. Erickson,186 Minn. 108, 242 N.W. 617, the trial court allowed certain expert witnesses fees of $25 a day each but made no finding of "special circumstances." This court, applying the district court rule, reversed the action of the lower court in so doing, thus indicating that the rules were not to be disregarded. In the opinion of that case it was pointed out that the witnesses were the usual practitioners of veterinary medicine, which fact, of itself, indicated "special circumstances." So here the witnesses concerned were the usual practitioners of law. I am of the opinion that the Bekkemo case is controlling unless it is to be expressly overruled.

Possibly lawyers who are away from their offices, as were the witnesses in the instant case, might, in the ordinary course of events, have lost some immediate business. That is not, as a matter of law, a "special circumstance" within the meaning of the rule. There is no record before us nor even a settled case. However, it is shown by an affidavit of Hugh E. Leach, attorney for the appellant in the lower court, that on the first day the expert witnesses knew by ten o'clock in the morning that the case was to be continued over that day, and when they returned the following days they were on the witness stand only a "short time." There is nothing from which this court may determine that such witnesses were absent from their offices "all of such days." However, whether they were or not is of no moment. In the absence of a settled case or a record, this court is limited to a consideration of whether the conclusions of law were supported by the findings of fact. Peach v. Reed, 87 Minn. 375,92 N.W. 229. Here there was no finding of "special circumstances."

It would seem to offend one's sense of proportion to allow witness fees totaling over $230 in addition to mileage, as was done here, in a case such as this where the amount sued for was less than $500 and the verdict recovered was immediately paid. Under the majority opinion an allowance of more than $10 a day as expert witness fees in addition to mileage, without any finding as to the number of days necessarily attended or the number of miles necessarily traveled, would be approved. In that view I cannot agree.

MR. CHIEF JUSTICE GALLAGHER and MR. JUSTICE PETERSON, not having been members of the court when this case was argued and submitted, took no part in its consideration or decision.