Shepherd v. Inman-Poulsen Lumber Co.

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. The bill of exceptions contains twenty different assignments of error. The first two relate to the refusal of the court to permit the plaintiff, while he was testifying as a witness, to read to the jury excerpts from certain exhibits that had been introduced in evidence. One was a petition for the vacation of a street in the City of Portland and the other was a deed executed by Inman-Poulsen Company to Inman, Poulsen Lumber Company describing as~ lots and blocks the premises which were occupied by the defendant and in controversy in one of the suits in which the plaintiff had rendered some of the legal services in question. The exhibits themselves were already in the record and were the best evidence of their contents. It does not appear that they had been proved by the plaintiff as a witness to their execution nor that they had been introduced while he was on the stand. Section 866, L. O. L., prescribes that:

“Whenever a writing is shown to a witness, it may be inspected by the adverse party and if proved by the witness shall be read to the jury before his testimony is closed, or it shall not be read except on recalling the witness. ’ ’

The instant record does not disclose a situation delineated by the section quoted; hence, plaintiff as a witness could not insist on reading the exhibit as part of his testimony. It would have amounted to an argument of his case from the witness-box. Even if the exhibits had not been introduced in evidence the court had the right to regulate the order of proof and could postpone their introduction until a later period.

3. Noted under the third exception is the refusal of the court to allow the plaintiff to testify to the report of one of the cases in which he-appeared as counsel for the present defendants in 46 L. R. A. (N. S.) as a leading case. There was no error in this ruling. At best his proffered testimony was hearsay about what the editor of that series of reports thought of the importance of the principle involved in the case reported.

4. In the fourth exception the plaintiff complains that on his cross-examination and without previous testimony on the subject the defendant was allowed over plaintiff’s objection to introduce a judgment-roll which was not in issue. It seems from the bill that the plaintiff had engaged in litigation for the defendant here in a cause involving issues similar to those in the case where he did the work for which he here claims remuneration. It was proper to show on cross-examination that the plaintiff had gone over the same ground in another case and did not have to labor so hard as he represents in the litigation for which he demands compensation in this action.

Under the fifth paragraph the plaintiff says he identified the volume, 46 L. R. A. (N. S.), containing the report alluded to above, and offered it in evidence. The court sustained defendant’s objection to the offer. For like reasons as before stated the ruling was correct.

5. It appears that about November 29, 1909, the plaintiff rendered a bill to the defendant for legal services in which there were certain specified items. The plaintiff complains that the court allowed an officer of the defendant testifying as a witness, to state in substance that he called on the plaintiff about that date for a bill for all services to date; that the latter furnished him with the account in question known in this case as Defendant’s Exhibit “C”; and that the defendant paid it. The contention of the plaintiff is that such testimony was a variation of the terms of the bill so as to make it include items not mentioned therein. Independent of the matter of accounting alleged in the answer, and as combating the plaintiff’s claim under the general issue, defendant could show that it requested a statement of plaintiff’s entire services to a certain date and that Exhibit “C” was what he gave in response to the request. It is in a sense an admission against the plaintiff’s interest enough to take the question to the jury.

6, 7. In support of its case, the defendant propounded a long hypothetical question to a member of the bar who appeared as a witness on its behalf purporting to cover a large amount of services and called for the-opinion of the witness concerning their value. The plaintiff objected to this question on the ground that it assumed as hypotheses matters concerning which there was no evidence. The bill of exceptions, however, does not state that there was no evidence to support the specifications of the question. If there is any evidence on the point a party has a right to cover it with a hypothetical question although there may .be contradictory testimony; and in the absence of a direct statement in the bill of exceptions itself that there was no testimony supporting the conditions of the interrogatory we must presume that the court did its duty in permitting the question to be framed as it was. This constitutes the seventh exception.

8. In the eighth assignment of error the plaintiff complains that the court allowed a practicing lawyer of fourteen years’ experience to give his opinion as to the reasonable value of the services of the plaintiff in some of the litigation mentioned in his complaint. The objection seems to be that the witness was not shown to be qualified in that it is not shown that he had any knowledge of the nature of the litigation in question. The witness, however, had testified that he knew about the ease and was interested in reading the decision and had heard the hypothetical question propounded to the other witnesses. "Whether a witness is qualified as an expert is for the court to decide the same as it determines the competency of any other witness as, for instance, whether a child is of sufficient understanding to testify. The weight of the testimony of the expert is for the jury to determine. The bill of exceptions discloses that there was evidence justifying the decision of the court as to the competency of the witness .mentioned, hence there was no error in allowing him to testify.

9,10. In the ninth, tenth, and eleventh exceptions it is complained by the plaintiff that William C. Benbow, one of defendant’s witnesses, was allowed to testify that he had been a deputy city attorney, of counsel for the city and was familiar with its litigation against the defendant. He was also asked to enumerate what important cases he had been engaged in for the city. He was then requested to give his opinion about the reasonable value of the services of the plaintiff. He was also allowed to give his judgment as to whether it was necessary for the plaintiff to attend the meetings of the city council and the executive board in the matter involved in the litigation. The connection of the witness with the litigation in question and with others of similar character was proper to be shown by way of preliminary to give the jury some idea of the professional standing of the one about to testify as an expert and his knowledge of the service whose value he was required to estimate. This was enough to let in his opinion. It may be presumed that the jury was probably not fully cognizant of the routine of business before the city council, so that it was properly within the discretion of the court to take the opinion of a naan who knew as a city attorney might, about the necessity of continued attendance at the meetings of that body. Moreover, the answer of the witness to that question concerning the attendance at the meetings of the city council was harmless as against the plaintiff, for he said:

“That would depend altogether on what was taking place there at the meeting. I shouldn’t think it would be necessary to attend all the meetings because there were many meetings in which this matter would not be up, but just what steps an active counsel might think was necessary would depend on his diligence and his activity and all those things to protect his client. He might do more than was necessary. He might think it was in order to protect his client. ’ ’

11. The plaintiff was not harmed by allowing Ben-bow to testify that it was not the intention of the city to destroy the defendant’s plant, that being an assignment under the twelfth exception.

12. Another member of the bar testifying for the defendant declared on cross-examination in substance that $15,000 to $20,000 would be a reasonable fee and besides stated that if the decree granted the defendant the use of the premises as long as they operated a sawmill it would be more valuable than the fee-simple title. The court ordered this additional part of the answer stricken out which was proper as the statement was merely argumentative.

13. In rebuttal, the plaintiff sought, as stated in exception 14, to explain the items in his bill for services known as Exhibit “C,” whereupon the court said:

“"Why do you wander on that way, Mr. Shepherd, all that has been before the jury. * * lam not going to permit you to go over things again and again.”

The plaintiff thereupon claimed the right to explain an item of the exhibit, whereupon the court said:

“Go on and state it; if the jury can stand it I can.”

Exception was taken to the language of the court. The witness was allowed to make his explanation, hence the testimony went to the jury as he desired. In purport, his complaint is that the judge was not suave in manner. The utterance may have been somewhat unethical when considered from the standpoint of extreme refinement. Judges, however, are human beings, and as said by Mr. Chief Justice McBride in Schaller v. Pacific Face Brick Co., 70 Or. 557, 567 (139 Pac. 913), they

“Are called upon to rule in a moment upon the most delicate questions relating to the admission or rejec-' tion of testimony; and for us to weigh their decisions made under such circumstances by the technical rules of logic and law would résult in the reversal of half the cases tried by them. "We should rather adopt the advice of the poet, ‘Be to their faults a little blind, and to their virtues very kind,’ and reverse only for such errors as appear to have worked actual injustice. ’ ’

The general character of the exceptions and the voluminous record sent to this court indicate that generally the plaintiff pursued a very technical course calculated to grate upon the patience both of the court and of opposing counsel; and we cannot be surprised that as late in the trial as the rebuttal testimony a slight expression of impatience should escape from the lips of the presiding judge. If impolite or even erroneous it is not of sufficient importance to justify the disturbance of the verdict.

14. Under the fifteenth assignment the plaintiff complains that he was denied the right to testify in rebuttal of the defendant’s testimony about whether Mr. Poulsen, an officer of the defendant, made more than one employment of the plaintiff. So far as that is concerned the plaintiff’s employment and his services were matter for his case in chief. Each party had a right to testify once on his own behalf on the. same subject and that is sufficient.

15. Again, under the next head the plaintiff is aggrieved because he was denied the right to show that the defendant was satisfied with the decree in the case of the City of Portland against the defendant. This is wholly immaterial. Under number 17 the plaintiff complains that the court refused to give certain instructions requested by him, but it does not appear from the bill of exceptions but that the court gave the same charge substantially. The instructions given are not contained in the bill of exceptions.

16. In the eighteenth instance the plaintiff objects because the court instructed the jury that if from the testimony they believed there was a settlement and that the defendant paid all that was required of it, the plaintiff was not entitled to recover anything for services from January, 1908, until December, 1909. As already indicated there is testimony quoted in the bill of exceptions to the effect that one of the defendant’s officers about November 29th called upon the plaintiff for a bill for his services to that date. In response to this the plaintiff furnished the bill known as Exhibit “C” which the defendant paid about December 2d of that year. This was sufficient to justify the instruction mentioned.

17. ‘Under the nineteenth specification of the bill it is stated:

“ Plaintiff also asked the court to interpret the writing, to wit, Defendant’s Exhibit ‘C,’ and not to submit the same to the jury as a matter of fact, and plaintiff was granted an exception to the refusal of the court to give the jury the legal effect of said writing and submit the same to the jury on the question of whether the same constituted a settlement of account. ’ ’

If the plaintiff had desired a particular instruction relating to the legal effect of the document, he should have framed it and submitted it to the court. Not having done so he cannot complain.

18. The final error assigned is that the court refused to set aside the verdict on account of misconduct of the jury. Some members of that body came forward after the trial and made affidavit to the effect that they had agreed to a quotient verdict and that some members had voted as low as $2,000, that being less than the amount admitted by the defendant. It has been so often decided by this court that, especially in such instances, the affidavits of jurors cannot be received to impeach their verdict that we forbear to repeat the citations.

The plaintiff’s appeal is not well taken and the judgment must be affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.