McCollum v. Clothier ( 1952 )

WOLFE, Chief Justice

(concurring in the result).

I concur in the holding that there is competent evidence to support the judgment; that a statement by the court preliminary to judgment filed by him that he favors or leans toward one of the parties is an utterance only and not a judgment; that since the actual judgment is supported by evidence the case cannot now be remanded for the purpose of ascertaining what another judge would determine or how he would hold; that reversal could not undo what has been done because of the untimely and unfortunate death of a material witness.

Speaking on the merits of the case, it appears to me that one may find himself in this jurisdiction saddled with an agent and an implied contract to pay for his services on slim evidence. It would seem that the putative agent might have some responsibility to make certain that he was an agent before he undertook the services. All of us are familiar in life with instances where a seeming volunteer ingratiates himself into the confidence of another only to be later revealed as a self-seeker. But I cannot say under the evidence, as related by Mr. Justice CROCKETT, that there was not in this case the relation of principal and agent between Dr. Clothier and Mr. Collum and that under such inferred agential relationship the plaintiff did not perform services for the defendant, assuming Mr. Iverson, attorney for the defendant, had authority to initiate such relationship between plaintiff and defendant. It would have obviated all doubt if the plaintiff had, at the beginning, ascertained whether he was on a commission or quantum meruit basis or on an agential basis at all. He may have realized that the certainty called for by such overtures would have ended any chance to recover for his services as a putative agent and preferred to take the gamble which events proved to have been a paying one. I am, therefore, in accord with the statement in the opinion that.

“The law should not require everyone to keep on guard against such possibilities [the possibility that the services were given gratuitously or on the contingency that the services were to be paid for only on the basis of their success and so measured] by warning persons offering services that no pay is to be expected.”

And also with the statement that,

“It is, therefore, essential that the court should exercise caution in imposing the obligations of implied contract, as contrasted to express contract, where the parties have actually defined and agreed to the terms they are to be bound by.”

My comment on this wise statement is that it appears to me that our courts have merely paid lip service to it or ignored it altogether. It is too easy in this state for one to surprisingly find himself a promisor under an implied contract.

As to the second phase of the case:

I agree that it was and is unwise for a court to express an opinion as to his conclusion on the issues before he has “analyzed the evidence and arrived at a definite and final conclusion” unless he makes it clear that his expressions are tentative only. Of course, circumstances play an important part in any rule. A wise judge works closely with both counsel in the conduct of the case. And counsel should and usually do try to cooperate with the court to the end of trying the case expeditiously and wisely. From my experience on the trial bench, I think that there are times when the judge may justifiably take a hand in the proceedings in a non-jury case or in the absence of the jury, and timely indicate his doubts and even dissatisfaction with the evidence. I see no reason why a trial judge should be little more than part of the furniture and perhaps with little adornment value at that.

Nor do I see why counsel should not at proper times, especially before the case is concluded, inquire of the court as to whether he is in doubt or unsatisfied as to any phase of the case. Of course, this presumes that the court is judicial and counsel are cooperative and that both the court and counsel are harmoniously working together for the expedition of justice or at least for a fair outcome of the case.

In this case, I think that counsel’s suggestion that no further evidence would be presented unless the court desired to hear Simpson was advanced in a spirit of cooperation and not for the purpose of eliciting an utterance from the court as to his state of mind; also that the response by the court to the suggestion was well meant but unwise and hardly a necessary response to the suggestion. A remark, if any, by the judge should have expressed a tentative doubt as' to the case made by the plaintiff but warned counsel that he had yet to examine the whole testimony and that the latter should be guided as to calling Simpson or taking his deposition purely by his (counsel’s) judgment. However, if the court was apprised of Simpson’s impaired state of health and weakened condition, he may have justified in trying to save him the strain of testifying. So much depends on the circumstances. I think this case points up lessons for both court and counsel, wherefore my rather extended observation: First, that the court and counsel cooperate harmoniously in the expedition of trials. Second, that judicial conduct requires that the judge make no untimely pronouncements as to the state of his mind in reference to conclusions on the issues except as cooperation and his need for further enlightenment on the facts seemingly require him to divulge his tentative conclusions and then only with a warning that they are tentative so that counsel are not to be misled. Third, that counsel only seek an indication of the court’s tentative state of mind in a bona fide attempt to expedite the trial and then only with the knowledge that any response elicited from the court cannot be taken as an assurance of victory or defeat and that it is but an interlocutory utterance from the bench.

It has seemed to me that the main opinion, even taking into account its admonitionary caution to the judge, overemphasized the responsibility of the attorney for his having invited the judge to mislead him. I do not quite see it in that light. The judge had control of his own response. As an aside, it should be noted that Mr. Iverson’s allusion to Mr. Simpson’s having the key was meant not to express the thought that Mr. Simpson would, if called, testify only as to having the key, but was symbolic of all the facts Mr. Simpson knew because of his having the key. That the main opinion recognizes that this evidence would have been valuable to the defendant appears from the statement in the opinion that

“Defendant now contends that Simpson would have testified that plaintiff took no one to the plant”

when he claimed to be working for defendant. Of course, the mere fact that Simpson had the key would not have helped. What would naturally be read into Mr. Iverson’s suggestion that Simpson’s deposition be obtained was that Simpson knew who plaintiff had brought to the plant because no one could gain access to the building without the key and that Simpson, because he had the key, would be able to testify as to' some of the activities or lack of activities of the plaintiff. This might or might not have made some difference in the amount of the judgment which was for some unrevealed reason hiked by the judge from $250 to $652.80 after the transcript had been procured by the defendant.

It is only in a case like this where some event intervenes which causes the misleading of counsel to be to his irreparable damage when the full harm which may flow from the court’s untimely utterance is made dramatically manifest. But due to Mr. Simpson’s death, I do not see how it can be remedied by reversal.

HENRIOD, J., having disqualified himself, did not participate.