Miller v. Puget Sound Bridge & Dredging Co.

I am unable to concur in the foregoing opinion. Relative to the first question discussed, I agree with the majority that the witness Huff was sufficiently qualified to testify to the value of the respondent's services, and that it was error on the part of the trial court not to permit him to answer. But I am of the opinion that it was not error requiring a reversal. The appellant did not sufficiently pursue the matter. The question propounded to the witness was one to which different answers could be returned. The witness might have answered that the services were worth all that the respondent claimed, or he might have answered that they were worth something less than the claim, but equal to or more than the sum the jury returned; in either of which events the appellant would have suffered no injury by the refusal of the court to permit him to answer. It was, therefore, incumbent on the appellant to show that the answers would be favorable to its side of the issue. Having the opportunity to so show, and having failed so to do, no presumption arises that the answer of the witness would have been favorable to it. In this situation, under our holdings, the rule is that the error is not available to the appellant. Godefroy v.Hupp, 93 Wash. 371, 160 P. 1056, Ann. Cas. 1918E 494; VanDelinder v. Richmond, 112 Wash. 191, 191 P. 850.

Nor am I able to discover error in the action of the court on which the majority reverse the judgment. As stated by the majority, the respondent did not seek recovery on the basis of a contingent fee. He sued for the value of his services, and during the trial of the case, when the evidence relating to a contingent fee was given by the witnesses, the court ruled, on objection to that line of testimony, that the question of a contingent fee was not involved, and so distinctly stated in the presence of the jury. In the instructions, the court also made clear to the jury that the reasonable value of the services was the sole question for their determination. Because it did not again state in its instructions that the question of a contingent fee was not involved, I cannot think in any way misled the jury. In my opinion, the judgment should be affirmed.

PARKER, J., concurs with FULLERTON, J.