On appeal from the District Court of the city of New Brunswick.
For the appellant, Edmund A. Hayes.
For the appellee, Morgan R. Seiffert.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Does an attorney, who is retained to prosecute a suit for damages arising out of an accident, have the implied authority to obligate his client to pay the fee of an expert witness to testify in the behalf of such client when the necessity of such a witness and the reasonableness of his fee are not challenged?
The stated question arises out of the conceded facts as disclosed in the agreed state of case. They are substantially these: Defendant retained one, Edmund A. Hayes, an attorney and counselor-at-law, to prosecute a suit in her behalf against the Pennsylvania Railroad Company. He did so. It appears that plaintiff is an expert in the reading of X-rays -- a roentgenologist; that during the course of the treatment of defendant's injuries plaintiff examined X-rays of defendant and rendered reports thereof to the other attending physician. The plaintiff was paid for these services. The plaintiff
in the instant suit testified that Hayes, who was then the defendant's attorney, requested him to testify at the trial of defendant's action against the railroad company in the capacity of an expert. This the plaintiff did. He explained to the jury the nature, extent and permanency of the injuries as disclosed by the X-rays. His testimony consumed about twenty minutes but he waited in the court "an hour or two" before he was called to testify. Defendant saw plaintiff in court, heard him testify; made no objection thereto; but she had no conversation with the plaintiff while the latter was in court. Nor did she expressly employ or authorize his employment. The necessity for plaintiff's testimony and the reasonableness of his charge of $100 were, however, not challenged.
At the end of plaintiff's case a motion was made for a directed verdict. The grounds of the motion were that counsel had the authority, express or implied, to bind his client; and even if he had no such authority the defendant, under the proofs herein, was estopped to deny his authority. This motion was denied. Counsel for defendant then moved for a nonsuit. The grounds of that motion were that there was evidence in the case that Edmund A. Hayes had no authority neither express nor implied to engage a physician to testify in the litigation against the Pennsylvania Railroad Company; that there was no evidence in the case as to the scope of the authority of Edmund A. Hayes and no evidence that he had obtained the defendant's consent to the retaining of the plaintiff to testify as to the X-rays, and there was no evidence that the defendant had agreed to pay the plaintiff a fee of $100 or any other fee. The motion of defendant's attorney was granted and an exception was taken by the plaintiff's attorney and allowed by the court.
In so doing the trial judge fell into error.
It is, of course, the well settled law that an attorney, under his retainer, has no authority, without the consent of his client, to surrender or waive any substantial legal right of his client. See subject discussed in Martin v. Lehigh Valley ...