On appeal from the Supreme Court, whose opinion is printed in 11 N.J.Mis. R. 544.
For the appellant, Kunzman & Kunzman.
For the respondent, Joseph I. Bedell (Winfield S. Angleman, of counsel).
The opinion of the court was delivered by
LLOYD, J. The question presented is whether a professional man may enter into a special contract at an agreed compensation for attendance as a witness and giving expert testimony upon the facts presented for determination in the trial of a cause.
Plaintiff below was a physician practicing medicine and surgery in Plainfield, and, according to his testimony, was asked to attend at the trial of a case in which the defendant Rushmore and his wife were parties. The doctor had observed the condition of Mrs. Rushmore and his evidence was desired to determine whether there were evidence of blows or bruises on her body or anything in her condition to lead him to believe that she had been subjected to violence or physical mistreatment.
The doctor said he was not anxious to be a witness, that he was in hospital service, his time was not his own and that nothing further developed at the first communication between the parties. Later he was formally subpoenaed by the defendant. This angered the doctor and in response to telephone inquiry the defendant called and assured him that he would compensate him for his time, and pay him the amount that the doctor might receive for a gall bladder or appendicitis operation. The witness in response attended on the trial, gave expert testimony as requested, and sent his bill to the defendant for his services in the amount called for by the agreement. This not being paid, the present action was brought and judgment for the plaintiff resulted. The doctor further testified that his observation of the wife was from a professional standpoint and that his answers were made on that basis.
It is quite obvious that the attendance and testimony of the plaintiff were sought from him as an expert witness giving not alone facts of his observation of the wife, but expressing his professional judgment as to the condition he found and its cause. This being true, the question is squarely presented (for the first time in this state, it is asserted by appellant) whether a contract for such services is void because of public policy.
Numerous authorities are found in other jurisdictions, some holding in the affirmative and some in the negative. In Maine in Gordon v. Conley, 107 Me. 286, and Barrus v. Phaneuf, 166 Mass. 123, it was held in favor of the validity of such contracts. Cases in other jurisdictions hold to the contrary. This court is therefore at liberty to adopt the view that seems to it more in consonance with sound reasoning.
It is quite clear, and no argument is required to demonstrate, that all knowledge which one has of the actual facts of a litigation, whether the witnesses to those facts be professional or lay, is available and such witnesses thereof amenable to subpoena and compellable to give evidence of such facts. On the other hand when the experience, training and skill acquired by years of study and practice in a given profession or
calling exists, such knowledge and skill are not the property of litigants. It belongs to the professional man in his chosen occupation. Neither justice nor public policy in our view forbids that the expert shall retain such knowledge and skill free from divulgement except by his voluntary acquiescence, whether it be sought for compensation in the exercise of his skill, in the expression ...