Kappler v. Storm , 54 Okla. 493 ( 1915 )

The amount of knowledge which a witness must possess before a party is entitled to his opinion as an expert is a matter left largely to the discretion of the trial court, and its ruling thereon will not be disturbed, unless clearly erroneous.Atchison, T. S. F. R. Co. v. Baker, 37 Okla. 48,130 P. 577; Chateaugay Ore Iron Co. v. Blake, 144 U.S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510;Congress, etc., Spring Co. v. Edgar, 99 U.S. 645, 25 L. Ed. 487; Stillwell, etc., Mfg. Co. v. Phelps, 130 U.S. 520, 9 Sup. Ct. 601, 32 L. Ed. 1035; Inland, etc., Coasting Co. v. Tolson,139 U.S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Erhardt v. Ballin, 55 Fed. 968, 5 Cow. C. A. 363.

It appears from the evidence that witness Farrar had had no experience in fixing fees for such services, and that all he knew as to the value of same was "from observation," the extent of which is not shown; that he did not know anything of the character or ability of plaintiffs, or their standing as attorneys, and did not consider that element in arriving at the conclusion as to the value of their services. It does not appear that said witness knew the actual services rendered by plaintiffs to defendants, or that he was an attorney at law. Judicial notice will not be taken that a witness offered is a lawyer; that fact must be made to appear. Fry v. Estes, 52 Mo. App. 1.

"An expert must have particular, specific knowledge upon the subject about which he testifies." (Jones Com. on Ev., vol. 2, sec. 368, and authorities there cited.)

Considering all the evidence of the witness, we are of the opinion that he did not properly qualify to authorize his evidence as to the value of the services rendered by plaintiffs to defendants to go to the jury. But there is a more serious vice in admitting his evidence as to the value of the services in this case, for the reason that he is not shown to be an attorney at law, which fact alone renders the admission of his evidence as to the value of services rendered a reversible error.

"As to the value of professional services, only persons engaged in that profession can give evidence." (Jones Com. on Ev., sec. 387, vol. 2, p. 960.)

In the case of Hart v. Vidal, 6 Cal. 56, Mr. Justice Heydenfelt says:

"A witness, who is not an attorney, is incompetent to prove the value of an attorney's services."

The holding in Hart v. Vidal, supra, is approved in the case of Howell v. Smith, 108 Mich. 350, 66 N.W. 218. See, also, Mockv. Kelly, 3 Ala. 387.

"The weight of authority is to the effect that a witness who is not a lawyer is not competent to testify as an expert to the value of the professional services of an attorney." (2 Encyc. of Ev., p. 169.)

In Allis v. Day, 14 Minn. 516 (Gil. 388), it is held that practicing lawyers occupy the position of experts as to the question of the value of legal services; that from the character of their business they are not only in the habit of estimating the value of official services, but they enjoy peculiar advantages for so doing; that their opinions of such values should therefore be received, not only because they are qualified to perform such services, but because it appears to be impracticable to furnish any more satisfactory evidence.

While it is true that some of the authors on evidence express an opinion contrary to the authorities cited, not one of said text-writers cites authority in support of his views.

We think the court correctly directed a verdict for the defendants Storm and Douglas, for the reason that the testimony of plaintiffs shows that they charged Storm and Douglas $200, and Gill $200, which was in accord with the interest of the parties in the subject-matter of the fee, and Storm and Douglas had paid plaintiffs $200 before the commencement of this suit.

Since the views herein expressed necessarily work a reversal of this cause, we deem it unnecessary to discuss any of the other questions involved in this appeal.

The judgment of the trial court should be reversed and the cause remanded.

By the Court: It is so ordered.