We differ with Chief Justice WILLSON only on the question of attorney's fees. The following is a brief statement of our conclusions:
In this case, after the plaintiff had pleaded the essential facts upon which she relied for a recovery, she further alleged that she had *Page 973 employed attorneys to collect the claim and had agreed to pay them the sum of $1,250, which, she represented, was a reasonable compensation for such services. The defendant met these averments with only a general denial. In the trial below the court submitted only two issues to the jury. The first referred to the question of total and permanent disability of the deceased; the second was as follows:
"What is a reasonable attorney's fee for representing plaintiff in the transaction, and collection of the loss claimed by her?" To this the jury answered, "$1,250.00."
Before those questions were read to the jury, the appellant requested the following special instruction:
"You are instructed that there is no competent evidence before you as to the reasonableness of the attorney's fees claimed by the plaintiff. You will therefore not consider the evidence introduced as to this issue, and will, as to the attorney's fees, return a verdict for defendant."
The refusal of that charge is the basis of the assignment of error raising the question to be considered. The law applicable to this portion of the litigation is article 4746 of the Revised Civil Statutes, and is as follows:
"In all cases where a loss occurs and the life insurance company, * * * liable therefor, shall fail to pay the same within 30 days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, 12 per cent. damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss."
It is undisputed in the evidence that a demand for the payment of the claim sued on had been made, and payment refused. That fact alone made the company liable in this case for some amount as attorney's fees; the court had the right to determine that question as a matter of law, and to instruct the jury accordingly. In this instance, the charge was framed upon the assumption that such liability existed, and no objection is made to its form. The only question presented for the jury to pass upon was, what sum was reasonable in this particular case? It cannot be said that the jury knew nothing about the services performed by the attorneys for the claimant, and which had to be taken into consideration in fixing the allowance.
Correspondence was introduced showing that the attorneys had undertaken the collection of the claim before suit, and had failed. The pleadings read to the jury, and which they carried with them to their room, showed that the attorneys had filed the suit, and the kind of suit so filed. The jurors saw that attorneys were present and conducted the trial; they saw and heard the attorneys examine and cross-examine witnesses and make legal arguments. These were material facts to be considered in fixing any fair allowance for the attorney's fees. They may not have been all the facts that should have been considered in making an adequate allowance, but they were a part of the facts, and probably the major portion of the material facts. It certainly was not necessary to place witnesses on the stand to tell the jury about transactions which took place in the presence of the jury as legal incidents in the trial. The only thing lacking, if more evidence was needed, to enable the jury, to answer the question submitted — what was a reasonable allowance? — was the opinion of some experts who were accustomed to fixing fees in similar cases. But such testimony, when admitted, would only consist of the conclusions of those experts upon the very facts with which the jury was already familiar. The testimony of such experts could aid the jury, not in deciding whether an attorney's fee should be allowed, but what sum would be reasonable. Such conclusions of experts are not facts; they are simply deductions drawn from facts. The statute quoted names the conditions under which an attorney's fee shall be allowed, when claimed, and leaves to the court, or to the jury, not to witnesses, the authority to decide what is reasonable in particular cases. What is proper and reasonable compensation for attorneys in collecting claims against debtors and delinquents is not a matter which lies exclusively within the knowledge of the legal profession, or of any other class of experts. Lawyers are not the only parties to such contracts of employment, and they are not the only persons to be consulted in deciding what shall be the fee to be paid for an attorney's services. In practically every such transaction there is one or more laymen whose concurrence must be secured. The employment of attorneys and the payment of their fees is a matter of such common occurrence in this country that jurors may be presumed to know something about what is customary and reasonable in given cases. See T. P. Ry. Co. v. American Tie Timber Co., 190 F. 1022, 111 C.C.A. 673. The objection here is not that the allowance made was excessive or unreasonable, but that the jury was without any evidence to justify an allowance for any sum. To sustain that contention is to create a legal fiction that complicates still more our already too complex system for administering justice.
But even if testimony of experts was required in order to empower the jury to fix some amount, it was presented in this case. The plaintiff below introduced three attorneys, who testified, in substance, that they knew what would be considered a reasonable fee for attorneys in cases of this character. *Page 974 Their estimates ranged from 25 to 50 per cent. of the face of the claim. They further stated that it was usual for such collections to be undertaken upon contracts for contingent fees; that the attorneys were to be paid only in the event they were successful. They admitted that the percentages given by them were based upon such contracts, it may be true that this was not the correct basis for estimating the value of allowances provided for by the statute, but it was sufficient to advise the jurors of a custom which enabled them to make a proper allowance upon the correct basis.
We also conclude that the trial court did not err in giving a special charge on the burden of proof relating to attorney's fees. There was no occasion for such a charge in this case. The court assumed as a matter of law that, if the appellant was liable on the claim, it was also liable for a reasonable fee, and there was no objection to such an assumption; for, as previously stated, the essential facts for the jury to consider on that issue was undisputed.
In the present state of the record, unless it can he said that the allowance made was excessive, and that is not claimed the appellant has no just cause to complain.
Justice LEVY, and the writer conclude that the judgment of the trial court should be affirmed.