Hastings v. Halleck

charged the jury. This case, the trial of which has occupied your attention for the last few days, is of a peculiar character, and one which is not very frequently presented. The principal difficulty involved in the case is, that the jury are required to pass upon the conduct of professional men, in regard to the degree of skill and diligence which they have exhibited in the course of the performance of their professional duties — a difficulty encountered in the decision of all cases of this nature, but which becomes materially enhanced when the conduct or acts of attorneys becomes the subject of consideration. In these cases, perhaps, ordinarily the court can best judge as to the real merits of the controversy. Generally, in cases involving the question of the liability of persons following a distinct trade or occupation, such as that of a mechanic, for example, for damages resulting from their alleged unskillfulness or carelessness, neither court nor jury decide upon that question from their own individual judgment or their knowledge of that trade. In such cases witnesses are introduced and examined touching the precise point involved, and the question is then determined according to their testimony. In these cases there is generally but little difficulty. In the case before you, however, no *242such testimony has been adduced, for the reason, probably, that the expectation has been that the court -would so instruct you as to enable you to arrive at a correct conclusion from a consideration of the facts bearing upon this question, which have been proven upon the trial. In some of the cases to which I have been referred, the court has instructed the jury directly and positively upon this matter of negligence as a question of law, while in others the jury have passed upon it, under general instructions from the court, according to their own judgments.

That which, in my opinion, constitutes the most important, and which must be the controlling, fact in this case, was only brought to my attention towards the conclusion of the argument of counsel yesterday, and upon reflection I can see but very little for the jury to pass upon. In my opinion the liability of the defendants must be determined by the decision of questions which are in themselves essentially questions of law, and therefore addressed to the court, and not to the jury, for decision.

A determination of the question as to the liability of these defendants, renders it necessary, to some extent, to reconsider the action of Adams v. Hastings. That was instituted, as the evidence has shown you,- for the recovery of a certain indebtedness of Hastings to those plaintiffs, which was created on his behalf in his absence by his agents and attorneys in fact. Haven and Brieeland, and the principal question there raised and discussed was, whether or not they, the attorneys, had the authority to contract that indebtedness.

Their power, whatever its extent, was derived through and by virtue of the power of attorney executed by Dr. Hastings upon his departure for the eastern states. Being then solely conferred by this instrument, its extent and limitations must be determined by the construction which shall be put upon the power of attorney; and this, like all other questions of a similar character, that is, all those arising in the determination of the scope and effect of written instruments, is a matter of law, to be passed upon by the court. It is true that questions of this character are often submitted to juries for them to pass upon, but always accompanied by direct instructions from the court, charging them that if they shall find that the evidence discloses the existence of a certain *243state of facts, then from these facts the law implies a certain consequence, which is also declared to them, and which they are instructed to express by their verdict; so that, as matter of practical effect, sub mitting the construction of a legal instrument to a jury, is rather a matter of form than an actual submission of the question to them— their real province being to determine the exact facts and circumstances the existence of which the testimony has disclosed.

Such a case would be presented here if the former action of Adams v. Hastings were at present before you ; but the principal difficulty encountered now, arises mediately from the fact that you are not exactly trying the issue between Adams Co. and Dr. Hastings. The question is as to the manner in which Halleck, Peachy Billings defended that action — it is their conduct which you are to consider— their professional conduct in a matter entrusted to their charge in their character as attorneys. And with regard to this matter I shall charge you as requested, that the presumption is that defendants did discharge their duty to Dr. Hastings as professional men — that the burden of proof lies with him, and in order to recover, it is incumbent upon him to establish affirmatively the fact of negligence and want of due diligence on the part of defendants. Hastings may not have any right to a recovery against them, merely because they did not successfully defend the action in the superior court, and that may hold true, although they might, perhaps, have brought it to a different determination. The main proposition is, that they are liable for damages arising from a want of a reasonable degree of diligence and skill. It is not required of an attorney that he should exhibit the utmost professional skill in the conduct of a cause ; in order to charge him with a liability for a loss resulting to his client, it is not sufficient that the jury should simply believe that the action might have been more successfully prosecuted (though, this fact must be established before a liability can be attached) — but he will be liable for whatever damage the client may have sustained by reason of his failure to exercise ordinary and reasonable skill and care.

This proposition is true of all the professions and trades. In the merely mechanical trades — in those in which manual dexterity is the *244predominant feature — the question of ordinary and reasonable skill, presents, as I said, but little difficulty ; but where the occupation is one requiring the exercise of the mental, rather than the physical powers ; where the operation to he performed must he done according to the dictates of the judgment, as it shall deem advisable; where the difficulty, whatever there may be in the operation to be undertaken, ■is to be overcome by mental, and not merely manual or physical exertion ; then in all such cases the difficulty of determining the question, whether or not the operator exhibited ordinary and reasonable care or skill, is much greater. To take an example of each of the different classes, as, for instance a wheelwright and a surgeon. In the case of the former, no matter what the particular piece of work, which he was called upon to perform in the course of his business, might have been, it would be difficult to conceive of one in which it would not be easy to declare whether or not he had exhibited a want of ordinary professional skill. But in the second case — that of the surgeon — there might be more difficulty than could arise in the case of the wheelwright. This example embraces in a degree the elements of both classes of professions ; it requires the exercise of the judgment, and of a certain manual dexterity peculiar to itself; and questions involving the liability of surgeons for alleged professional negligence or maltreatment, may involve considerations which would ordinarily be given to each of the classes. If the point presented involved solely the question of the surgeon’s manual dexterity, as exhibited in some surgical operation, the difficulty experienced would be of precisely the same nature as in the cases of the wheelwright, although, perhaps, it might be somewhat enhanced in the former case, by the fact that the operation was one involving a higher degree of dexterity. To take as an example, the case of setting a broken leg. If the point were conceded that it was necessary that the leg should be set, then it would probably be easy to decide whether or not it was done in an unskillful or negligent manner. But if the point in controversy were, not as to the manner in which the operation of setting the leg was actually performed, but as to whether or not it should have been set at all, (it might be claimed that it should have been cut off, for instance,) then there would be *245more difficulty, for in that case the exercise of the surgeon’s judgment would have been called into requisition, and it might be difficult to say that he acted in so negligent or unskillful a manner as to render himself liable, particularly where there may have been some doubt as to which of the two courses it would have been proper to have adopted. So in conducting a cause, where the attorney’s judgment is called into action from the beginning to the end — the bona fides of his conduct not being questioned — it will almost always be difficult to determine whether or not he has done any act, or has pursued a course, which is so far from what a man in the exercise of ordinary skill and care, would have done or pursued, that he will be liable to his client by reason of his conduct.

It is true that there may be cases in which the error is so palpable, the negligence so manifest, that a court or jury would be authorized at once to declare that the case displays a want of reasonable diligence and skill. There are in this case various errors charged upon defendants, all of which, it is claimed, show that the defense of the action was not conducted with reasonable skill and care. One of these to which your attention and that of the court has been directed, is the action of Mr. Peachy with regard to the stipulation entered into between Mr. Hachett and himself relative to the publication of summons against Hr. Hastings. It appears that an understanding was had between the counsel, by which defendant’s attorneys agreed to waive the actual publication of summons, and that they would, within the one hundred and thirty days, allowed by law, to an absent defendant to come in and defend, file an answer on behalf of Dr. Hastings. Mr. Haclcett drew up a stipulation which he subsequently presented to Mr. Peachy, representing to him that it contained the conditions of the understanding to which they had previously arrived, and requested him to sign it, which Mr. Peachy did. It appeal's, however, that this stipulation, probably from some error of Mr. Hackett in his computation of the time, was not worded in accordance with the understanding as it was actually had between the parties, or at least as Mr. Peachy understood it, the time for answering having been made shorter than that allowed by law, (and which, according to Mr. Peachy’s understanding of the agreement, he was to receive,) by thirty days.

*246The consequence was that a default was entered against Dr. Hastings, which however, was subsequently opened, although at an expense of about seventy dollars. Now the action of Mr. Peachy, in signing this stipulation, was almost a purely mechanical one ; he had previously resolved upon the propriety and expediency of the step, and this was merely carrying into execution, a previously conceived intention; he probably relied upon Mr. HacIceWs accuracy to make the proper calculation, and took it for granted that he had done so; but ordinary care would require him to have examined the stipulation before signing, and he would be liable to his client for any damages that resulted from it, but in this case no damage resulted, and it is only alluded to as an illustration.

In the conduct of an action, ordinary skill and care is required in the preparation of the case for trial, that is, in procuring the attendance of witnesses, in ascertaining from them the facts which they can establish by their testimony, and in taking such other steps as may be needful or requisite to a proper trial of the case. After this, there must be ordinary professional care and skill employed in and during the progress of the trial. And very often in regard to this point, there may be difficulty in arriving at a determination, although in this as in all other instances, the' negligence may be so extreme as to be easily declared. As for instance, if an attorney, after procuring his witnesses, should omit to examine them, or, although he may have placed them upon the stand, should have failed to elicit from them their knowledge of facts which may have been important, if not absolutely essential, to his client’s case, and with regard to which he knew they would have given testimony if interrogated.

These are facts which might sometimes be shown in an action like that now before you. But in this case, I believe it is not contended that any negligence of this character on the trial was exhibited by defendants. The main charge against them is, that they did not make sufficient preparation for the trial; that is, that they did not, by proper inquiry and investigation, ascertain the existence of the facts which have been proven here with regard to the great question involved in that case, *247namely, whether or not Haven Briceland had authority to borrow money for Dr. Hastings. Now it was undoubtedly their duty to have made diligent inquiry and search as to all the matters affecting that question, and if they did make such investigation to the best of their ability — if they did with due diligence make all inquiry which lay in their power — if they did examine into the existence of all the facts which Dr. Hastings may have communicated to them, which may have gone, or tended, to make out a defence to the action, and did ascertain, so far as they were able, the means of substantiating those facts — then, in that particular, namely, the preparation of the case for trial, they fully discharged their duty towards Hr. Hastings as his attorneys.

I stated that although defendants may have been guilty of negligence in conducting the defence of Adams v. Hastings, yet Hr. Hastings may nevertheless not be entitled to recover anything against them — that is, he may not have sustained damage. He can recover any damage clearly attributable to their negligence, but he must establish affirmatively not only the fact of negligence, but also the fact of damage. It might be that the loss of that suit could be shown to have been directly caused by carelessness on the part of defendants, but even then Hastings is none the worse by such loss, unless there was a valid defence to the action. It is incumbent upon him to show this fact affirmatively, and unless he has now established the fact that he had a good defence to that action — unless he has here proven facts which, had they been established in the prior suit, would have changed its result, then he can recover nothing. I shall give you therefore the charge requested — that if there was no substantial defence to the action of Adams v. Hastings — if no just and proper defence could have been set up in said action, then defendants are not liable to plaintiff in this action.

And this brings me to the last charge requested, that if the jury believe that any important matter was omitted in the defence of the action in consequence of the absence of Hr. Hastings, which might have been done had he been present aiding and assisting, and that absence was not caused by the advice of the defendants, then they *248are not liable in this action. I shall give this instruction, but must modify it. I have stated that it was the duty of defendants to have made all reasonable inquiry and investigation into the facts bearing upon the issue, and the defence set up. This being so, I shall charge as requested, that defendants are not liable for the non-production of facts, occasioned by the absence of Dr. Hastings, provided, however, they could not by such diligent inquiry and search, have discovered those facts. Having undertaken the defense with a knowledge that Dr. Hastings would be absent, it was a part of their duty to look up such facts as they could, and then, if there were any facts remaining behind which they could not by reasonable diligence have ascertained, but which, had Dr. Hastings been present, could have been established, then he, and not the defendants, must bear the responsibility of the non-production of those facts.

The action of Adams v. Hastings ivas, as has been proven, insti-tirted to recover the amount of certain advances made by the former on behalf of the latter, to defray his share of the expenditures made on the common property. The money was advanced at the instance of Hastings’ agents, who were acting under a power of attorney. The great question there raised was that this power did not confer the authority to borrow money. The fact that the alterations had been made in the original plan— that Hastings, prior to his departure, made a proposition to the then plaintiffs to advance money at a certain rate of interest, which proposition they declined to accept' — that the advances had been actually expended on the improvements, were all established on the former trial, and in view of these facts judge Shat-tuck decided that under the power of attorney the agents had the authority to borrow money. If, on this trial there have been presented facts which were not proven, owing to a want of proper care, before judge Shattuck, which facts have so important a bearing upon the issue then joined that had they been proven, they would have changed the result of that action, then defendants are now liable for not having proved them; but if these new facts would not have affected that result, then they are not. I shall charge distinctly, in order that Dr. Hastings may have the full benefit of the charge, should *249it be erroneous, and may have the ruling of the supreme court upon the construction of the power of attorney, (what he ought to have had before,) that the new facts which have been now proven, are not sufficient to have changed that result. These new facts are, that prior to Dr. Hastings’ departure it was agreed among the owners that the North Point works should be completed out of the funds tobe derived from the improvements themselves, and that the improvements should proceed according to his plans. These two are the only facts which have now been proven, in addition to those which were .established before; and as I stated, I shall charge that these are not sufficient to have changed the decision of judge Shattuck. The defendants are not liable for the non-production of evidence which would have been unavailing if it had been produced. If they had put Huerne and Flint on the stand they could have proved the additional facts, but if these additional facts would not have affected the result, then the fact that they omitted to do so, cannot have prejudiced Dr. Hastings. Judge Shattuck decided that the power of attorney was broad enough to authorize them to borrow the money from Adams cf Co., and to execute the instrument upon which suit was afterwards brought. The judgment in that action was adverse to Dr. Hastings, and defendants appealed.

It is impossible not to see that this appeal must have been mainly to have the decision of the supreme court upon this great point; instead of which defendants in their transcript admitted the authority, and carried the case up on the question of interest alone. The main ground of defence was admitted adverse to defendant, and the supreme court were only asked to decide whether or not he must pay interest. The court reversed. the judgment of the court below, unon this point, and awarded a new trial. Then defendants stipulated that judgment should be entered in favor of Adams Co. upon deducting the interest only. In the present case this is the great question as hearing upon the responsibility of these defendants. It is a question not free from difficulty, and is one upon which it is not pleasant to be constrained to instruct you. I feel bound, however, to charge you, that after having made the proper' objections, and taken the proper *250exceptions on the trial, the omission to embody them in the statement so as to obtain the decision of the supreme court upon the main question, and then waiving by stipulation a new trial, on which the question might have again been raised, that defendants were guilty of negligence, or the omission to exercise ordinary care and skill, and are liable for any damages • which plaintiff may have sustained by reason thereof.

I have said that there is very little in this case for the jury to pass upon, and this holds true notwithstanding the instruction that defendants have rendered themselves liable for all damage which Hastings has sustained. He claims that if there had been a new trial, he would have presented facts which would have altered the material merits -of the case. He would have proven the same facts which he has proven on this trial, and this raises the question — has Hastings here shown any facts which would have altered the material merits — has he shown any facts which, if they had been proven before, would have changed the result of the action. I have charged that he has not. The new facts which have been proven leave the liability of Hastings to Adams Co. the same that it was before. The merits of the case have not been changed, and therefore Hastings sustained no damage by defendants’ stipulation to waive a new trial.

This proceeds upon the assumption that judge Shattuck was right in his construction of the power of attorney. The decision of judge Shattuck is not binding upon this court, but I should be reluctant to give a decision which would in effect, overrule the decision of a court of concurrent jurisdiction. That is properly the business of the supreme court. For the purposes of this trial, I shall therefore charge you that the power of attorney, under the circumstances, was sufficient to authorise the borrowing of the money, and that hence Hastings had no valid defense to that action, and has sustained no damage, If I am wrong in thus instructing you with regard to the question of construction, and judge Shattuck was also wrong, then the supreme court can reverse my judgment, in the event of an appeal being taken, and Hastings can then have a judgment for the damage which that decision may show that he has sustained.

*251The case, however, having been submitted to the jury, the court is not at liberty to take the decision of it from them entirely. I shall therefore charge, (and the jury will bear in mind what I have already said,) that if you find that defendants have not exercised reasonable diligence and skill, in their profession as attorneys, in conducting the action of Adams v. Hastings, then they are liable for all damage which plaintiff has sustained by reason of their negligence. This negligence plaintiff must have affirmatively established. It must be shown, however, that Hastings had a good and valid defence to that action before defendants can be charged with any liability. The jury will first consider the action of defendants in preparing the case for trial, and pending the trial itself. If defendants then omitted to do anything to the defence of the case, which if it had been done, would have been unavailing, then they are not liable for such omission. That is, in other words, they are not liable, no matter what they did, or omitted to do, unless Hastings had a valid defence to the action. That is the first point which he must establish. And further, if any important matter was omitted in consequence of the absence of Dr. Hastings, and that absence was not occasioned by the procurement or advice of the defendants, and the defendants could not by reasonably diligent inquiry have ascertained that matter, then they are not liable for not having produced it. If no negligence has been established against defendants up to and during the trial, then the jury are to consider the subsequent facts. If they believe that in stipulating that judgment should be entered in favor of Adams Co., and that the new trial awarded by the supreme court be waived, defendants were guilty of negligence, then they are liable for all damage which plaintiff may have sustained by reason of such negligence ; but in determining the amount of damage, the jury will bear in mind the instructions already given. If the jury find for plaintiff, the amount of damages to which he may be entitled will be the amount which he has actually paid out by reason of the recovery of the judgment against him, and not the present value of the interest in the property, which was sold to satisfy the judgment.

The jury returned a verdict in favor of the defendants.