Thompson v. Knickerbocker Ice Co.

New York Court of Common Pleas

Thompson v. Knickerbocker Ice Co.

6 N.Y.S. 7, 25 N.Y. St. Rep. 581, 1889 N.Y. Misc. LEXIS 373

DecidedJune 3, 1889

StatusPublished

This text of 6 N.Y.S. 7 (Thompson v. Knickerbocker Ice Co.) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Knickerbocker Ice Co., 6 N.Y.S. 7, 25 N.Y. St. Rep. 581, 1889 N.Y. Misc. LEXIS 373 (N.Y. Super. Ct. 1889).

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Opinion

Bookstaver, J.

The action was brought by an attorney to recover for legal services rendered the defendant. Several witnesses were examined in Washington under commission, to prove the value of these services. In order to do this, hypothetical questions were put to them. Defendant contends that the answers to these questions were erroneously admitted in evidence, under defendant’s objection, because the questions involved assumptions at variance with the facts established on the trial. Although there were several of these questions, the substance of each, and the objections to each, were the same, and they may be considered together. The principal variances claimed are two: First, it was assumed that the commissioner of internal revenue at Washington had decided the question of defendant’s liability to a tax on certain evidences of debt issued by it to its workmen, known as “ice tickets,” whereas in fact, as is claimed by the defendant, no such decision had been made by him; second, the amount of defendant’s “liability,” or the “amount involved,” was assumed to be $168,178.27, whereas in fact defendant claims it was less than $20,000.

The rule in regard to such questions, as stated by Judge Rapallo in People v. Augsbury, 97 N. Y. 505, 506, is: “Hypothetical questions are allowed to be put to experts, but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which, if controverted, the jury might legitimately find on weighing the evidence.” Although this was announced in a criminal case, we think the rule is no stricter in civil actions. Indeed, in the latter class of actions we think it is sufficient if the facts stated are substantially, and not literally, the same as the facts proved, (Williams v. Brown, 28 Ohio St. 547; Covey v. Campbell, 52 Ind. 158,) so long as neither the witness nor the jury are misled by the variation. The questions put, however, contain a very material variation in both the respects mentioned, if the facts proved on the trial are as claimed by the defendant. It appears from Exhibit D, in evidence, and the testimony of the commissioner of internal revenue, and of the respondent, that the commissioner had decided that the “ice tickets” issued by the Consumers’ Ice Company, in all respects like those issued by the defendant, were subject to a tax of 10 per cent., and that the defendant was liable to such tax on the tickets issued by it as well as the Consumers’ Ice Company on their tickets, and on this evidence the jury might well have found that the commissioner had in effect decided defendant’s liability on those tickets, and therefore we think the evidence warranted the assumption in that respect in the hypothetical question.

As to the extent of defendant’s “liability” or “the amount involved”'in the controversy, the evidence before referred to, together with defendant’s return to the government and Mr. Forrest’s testimony, would have abundantly justified the jury in finding that $168,178.27 was involved in the entire controversy, although only about $20,000 could have been obtained by distraint, leaving the rest to be recovered by action, in the event the commissioner’s decision had been adhered to. The question was not as to the remedy of the government, and for the purpose of that question enough had been shown in the evidence to warrant the assumption in that part of the hypothetical question. The exceptions to the judge’s refusal to charge that no weight should be given to the testimony of experts based upon the hypothetical question, [10]*10of course, falls with the objections to the questions. The other exceptions to the charge fall with these.

Appellant claims that the damages awarded were excessive. Although the ’ verdict seems large, yet there was abundant testimony, if relied on by the jury, to support it. Considering the condition of the controversy when plaintiff was retained, the delicacy required in its management, and the amount involved, we cannot say that the verdict was so clearly excessive as to warrant us to set it aside and send the case to another jury, who must decide it on the same state of facts. The judgment is therefore affirmed, with costs.

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Bookstaver, J.

The action was brought by an attorney to recover for legal services rendered the defendant. Several witnesses were examined in Washington under commission, to prove the value of these services. In order to do this, hypothetical questions were put to them. Defendant contends that the answers to these questions were erroneously admitted in evidence, under defendant’s objection, because the questions involved assumptions at variance with the facts established on the trial. Although there were several of these questions, the substance of each, and the objections to each, were the same, and they may be considered together. The principal variances claimed are two: First, it was assumed that the commissioner of internal revenue at Washington had decided the question of defendant’s liability to a tax on certain evidences of debt issued by it to its workmen, known as “ice tickets,” whereas in fact, as is claimed by the defendant, no such decision had been made by him; second, the amount of defendant’s “liability,” or the “amount involved,” was assumed to be $168,178.27, whereas in fact defendant claims it was less than $20,000.

The rule in regard to such questions, as stated by Judge Rapallo in People v. Augsbury, 97 N. Y. 505, 506, is: “Hypothetical questions are allowed to be put to experts, but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which, if controverted, the jury might legitimately find on weighing the evidence.” Although this was announced in a criminal case, we think the rule is no stricter in civil actions. Indeed, in the latter class of actions we think it is sufficient if the facts stated are substantially, and not literally, the same as the facts proved, (Williams v. Brown, 28 Ohio St. 547; Covey v. Campbell, 52 Ind. 158,) so long as neither the witness nor the jury are misled by the variation. The questions put, however, contain a very material variation in both the respects mentioned, if the facts proved on the trial are as claimed by the defendant. It appears from Exhibit D, in evidence, and the testimony of the commissioner of internal revenue, and of the respondent, that the commissioner had decided that the “ice tickets” issued by the Consumers’ Ice Company, in all respects like those issued by the defendant, were subject to a tax of 10 per cent., and that the defendant was liable to such tax on the tickets issued by it as well as the Consumers’ Ice Company on their tickets, and on this evidence the jury might well have found that the commissioner had in effect decided defendant’s liability on those tickets, and therefore we think the evidence warranted the assumption in that respect in the hypothetical question.

As to the extent of defendant’s “liability” or “the amount involved”'in the controversy, the evidence before referred to, together with defendant’s return to the government and Mr. Forrest’s testimony, would have abundantly justified the jury in finding that $168,178.27 was involved in the entire controversy, although only about $20,000 could have been obtained by distraint, leaving the rest to be recovered by action, in the event the commissioner’s decision had been adhered to. The question was not as to the remedy of the government, and for the purpose of that question enough had been shown in the evidence to warrant the assumption in that part of the hypothetical question. The exceptions to the judge’s refusal to charge that no weight should be given to the testimony of experts based upon the hypothetical question, [10]*10of course, falls with the objections to the questions. The other exceptions to the charge fall with these.

Appellant claims that the damages awarded were excessive. Although the ’ verdict seems large, yet there was abundant testimony, if relied on by the jury, to support it. Considering the condition of the controversy when plaintiff was retained, the delicacy required in its management, and the amount involved, we cannot say that the verdict was so clearly excessive as to warrant us to set it aside and send the case to another jury, who must decide it on the same state of facts. The judgment is therefore affirmed, with costs.

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6 N.Y.S. 7, 25 N.Y. St. Rep. 581, 1889 N.Y. Misc. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-knickerbocker-ice-co-nyctcompl-1889.

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