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Thomas v. Ruhl

30 Del. 437 7 Boyce 437 Court Superior Court for Kent County, Decision date 1919-10-27 Docket Appeal No. 1 English

Delivered by Pennewill, C. J.,

Contents

Majority

p. 437
James H. Thomas, d. b. a., vs. Frederick P. Ruhl, p. b. r.

Headnote

Witnesses—Fees of Expert Testifying Before Justice.
The law and rule of court authorizing payment of five dollars a day to a witness testifying as-an expert does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay witnesses more than the legal fees for testifying before a justice is unenforceable by action.
(October 27, 1919.)
Pbnnewill, C. J., and Boyce, J., sitting.
John D. Hawkins for the appellant.
J. Hall Anderson for the respondent.
Superior Court for Kent County,
October Term, 1919.
Appeal No. 1,
April Term, 1919.
Action by Frederick P. Ruhl before a justice of the peace against James H. Thomas. Judgment for plaintiff. Defendant brings appeal. Trial before jury. Verdict for appellant.

charging the jury:

This is an action of assumpsit brought by the plaintiff against the defendant to recover an amount which the plaintiff claims is due and owing to him for services rendered the defendant as an expert witness in a trial before, a justice of the peace in which the defendant was plaintiff.

p. 438
The plaintiff contends that the defendant requested him to attend said trial and give testimony as an expert witness, and agreed to pay him the sum of five dollars for each day’s attendance and mileage.

The defendant denies that he made any agreement to pay the plaintiff more than the usual and legal witness fees and mileage, all of which he contends he has paid.

The court instruct you that the plaintiff cannot recover in this case a greater amount than the difference between the amount the testimony shows the defendant has paid, and the legal fees and mileage. Any agreement to pay more than such fees would be against public policy and void. The law and rule of court, which authorize the payment of five dollars to a witness testifying in a case as an expert, does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay more than the legal fees is unenforceable in an action at law.

Verdict for appellant.