132 P. 1026

GEORGE F. ZIMMER, Appellant, v. MARY WOODMAN KILBORN, Respondent.

L.A. No. 3135.Supreme Court of California, Department Two.
May 29, 1913.

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APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Stanley A. Smith, Judge presiding.

The facts are stated in the opinion of the court.

Waldo M. York, and Murphey Poplin, for Appellant.

James G. Maguire, and D. Joseph Coyne, for Respondent.

MELVIN, J.

Plaintiff obtained judgment for five hundred dollars, but being dissatisfied appeals therefrom and from an order denying his motion for a new trial.

The suit was on an assigned claim for services alleged to have been performed by J.L. Murphey and the law firms of Murphey
Schmidt and Murphey Poplin for and on behalf of the defendant. We have discussed the pleadings in the opinion this day filed ante, p. 521, [132 P. 1025], sustaining

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the order by which plaintiff’s motion for judgment on the verdict for the full sum sued for in the complaint was denied.

The first point made by appellant is that there was no evidence to justify the verdict as to the amount of the recovery. It is true that all of the expert witnesses sworn on behalf of plaintiff testified that the services rendered were of greater value than five hundred dollars. Plaintiff also contends that the form of the answer admits the services to have been of any value less than the exact amount claimed. The latter contention is not tenable because the plaintiff went to trial upon the quantum meruit without objecting to the sufficiency of the denials in the answer of the essential averments of the complaint. (San Luis Water Co. v. Estrada, 117 Cal. 172, [48 P. 1075]; Rawlins v Ferguson, 133 Cal. 470, [65 P. 957]; Milwaukee Mechanics’ Insurance Co. v. Warren, 150 Cal. 353, [89 P. 93].)

The fact that the defendant offered no evidence to contradict that of the attorneys who testified regarding the value of the services rendered by plaintiff’s assignors did not prevent the jurors from considering the matter in the light of their own experience nor cut them off from the right to return a verdict in favor of plaintiff for a sum less than that mentioned by any witness if, in their discretion, they believed the amount returned by their verdict a sufficient compensation for the work performed. The opinions of experts in such cases as this are not binding upon the jury. (See Spencer v. Collins, 156 Cal. 306, [20 Ann. Cas. 49, 104 P. 320], and cases cited.)

Defendant was permitted to testify that Mr. Murphey performed certain services for her as special administratrix of her mother’s estate, for which, on the court’s order, she paid him eight hundred and fifty dollars. This is assigned as error, because neither the complaint nor the answer involved any question of the value of services performed for Miss Kilborn as such special administratrix. Conceding that the ruling admitting such testimony was erroneous, we fail to see how plaintiff was injured thereby. At the most the testimony indicated merely that there had been another transaction between the attorney and his client which had been terminated by a payment for his services made pursuant to an order of court. We cannot see how this fact could have

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prejudiced or harmed the plaintiff in the present litigation. The court was requested to instruct the jury to disregard the testimony relating to the fee paid to Mr. Murphey as attorney for the special administratrix, but refused to do so. As the testimony itself was harmless, the refusal to give the instruction was also without prejudice to plaintiff.

The court also refused to give an instruction to the effect that if there was no contract providing that all of the services were to be performed for defendant in the matter of the estate of William Henry Kilborn, deceased, and in the matter of the estate of Julia Ann Kilborn, deceased, as one employment at an agreed fee for both proceedings, then the amount of compensation for services in each proceeding would be distinct from that to be awarded for services in the other and should be separately determined. There was no error in refusing to give this instruction. The court had told the jury that if there had been no meeting of the minds of Mr. Murphey and Miss Kilborn regarding the employment of the attorney for a contingent fee, then there had been no such contract as was alleged in the answer and in that case the attorney or the partnerships would be entitled to receive a reasonable compensation for the work performed and “it would be the duty of the jury to determine from the evidence what such services were reasonably worth.” The objection to this instruction is that it “practically tied the services in both estates together as one employment, which was not warranted by the evidence nor by the pleadings.” There is no force in this objection. The jury could not have been in doubt upon this subject, because plaintiff’s claims were for separate and definite services alleged to have been performed in litigation connected with the two estates. His demands were set forth in different counts of the complaint and were separately answered. It would have been impossible for the jury to follow the instruction given without considering each item of service performed in each case, and the instruction refused was therefore unnecessary.

The judgment and order are affirmed.

Henshaw, J., and Lorigan, J., concurred.

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