
    Hossler, Executor, v. Trump.
    
      Trial for services rendered — In action for quantum meruit —' Plaintiff shows facts and nature of service — Case for jury — Although no witness ,e.vpressed opinion of value of service.
    
    When, upon the trial of the general issue, in an action upon a quantum meruit for services of a domestic character, the plaintiff offers evidence showing the facts from which the promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury although no witness expresses an opinion as to the value of the services.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Stark county.
    The defendant in error brought suit against the plaintiff in error as executor of the last will and testament of John J. Trump, deceased, upon an account of several items, alleging the indebtedness of the testator on said account and the presentation thereof t® the executor and its rejection by him. In his answer the plaintiff in error admitted his representative character and the presentation and rejection of the claim, and denied all the remaining allegations of the petition. The question for decision arises upon two items of the account which are as follows :
    “For nussing, bathing and caring for said John J. Trump from June 3rd, 1890, to November 3rd, 1892, and for washing his clothing and bed clothing and mending and caring for his clothes generally during said time, and in taking care of said John J. Trump during said time in the sum of $3.00 per day, 875 days..........$2,525 00
    Interest on same from November 3d, 1892.. $542 75” In support of his claim upon these items the plaintiff introduced evidence tending to show the testator’s legal obligation to pay for the services, and showed with much particularity and detail the extent and character of the services rendered, it being such as would be required by one afflicted with paralysis and the infirmities of age, being rendered day after day and being more or less regular and extensive, as the fluctuating condition of the testator required. But no evidence was offered tending to show that the value of the services had been fixed by agreement, nor did any witnesses give to the jury an opinion as to t'heir value.
    Upon this state of the issues and the evidence the trial judge directed the jury to return a verdict for the defendant as to these items. The plaintiff’s motion for a new trial was overruled and there was a judgment upon the verdict. In the circuit court the judgment of the common pleas was reversed for error in that instruction.
    
      
      Day, Lynch & Day, for plaintiff in error.
    The plaintiff claimed that he had proof ready to show the value of the services. Why was it not, therefore, incumbent upon him in the proper stage of the case, to show the value of the services in question? It is true, that the jury will be expected in considering evidence, to apply to it their general knowledge of such services, but the jury can not supply from thek’ own minds that which was incumbent on the part of the plaintiff to furnish. We believe that the great weight of authority fe in support of our position that it was incumbent upon the plaintiff at the trial to prove the value of the services which he alleged he performed for the decedent. Johnson v. Speigle, 4 C. C., 388; The Brabo, 33 Fed.,884-6; Cushman v. Merkle, 3 Bosw. (N. Y.), 402; Jenks v. Mining Co., 58 Ia.,549; Wyckoff v. Taylor, 43 N. Y. S., 31; Sunford v. Railway, 40 Mo. App., 15; 1 Wharton Evidence, Sec. 602; Starkey Evidence, Sec. 735.
    In the case of McIntyre’s Executor v. Garlik, 8 C C., 416, a divided court followed a rule which would seem to be somewhat in conflict with our position upon this question. An examination of this case will, however, disclose that the services performed were at irregular intervals, and of such an uncertain nature that, as the court well said, “There could not be a customary rate for such irregularly performed services.” The case at bar, however, does not present the difficulties suggested in the McIntyre case, since the services were susceptible of clear proof as to their value, as will appear from the offer of the plaintiff to prove their value after both parties had rested and the charge been-given as before stated. Machader v. Williams, 54 Ohio St., 344.
    It has been the universal practice for the plaintiff in cases of this character to show by proof; first the nature of the service's performed, and then the reasonable valise thereof. Persons who have rendered such services or have had experience in caring for the old and feeble and in securing attention of the nature set forth in the third item of plaintiff’s account, have much better means of knowledge as to the value of services of this nature than the jury might possess in common with other persons; while the jury might not be absolutely bound by the testimony of witnesses as to value, yet proof of this nature is essential to give the jury at least some idea of the value of the services in question. 2 Jones on Evidence, 389; Rogers on Expert Testimony, p. 386; Wallace v. Schaub, 32 Atl., 324; Williams v. Brown, 28 Ohio St., 547.
    
      Welly & Alba-ugh, for defendant in error.
    The jury had before them the kind of services rendered, the time it took to render them, how they were in fact rendered, and what agreement there was, if any, to pay therefor, and were therefor competent to judge of their value. How could any expert fix any money value, and how much better would his judgment be than that of the juror. It must come only from his general knowledge of that kind of work; that knowledge the jury had.
    The jury is presumed to know the value of such services as well as the witnesses. Upon all matters upon which the jury are presumed to know as much as the witness, expert testimony is not admitted.
    Because courts must act, if governed by reason and common sense, upon the presumption that jurors are acquainted with the ordinary transactions and business of society; and perhaps no one thing is so well known as the value and prices of labor. Jurors wall be influenced by their own knowledge, in coming to a conclusion, and it is right they should be.
    This, we contend for, is the rule in Ohio, and our court has substantially approved of this doctrine, and of the province of the juror to fix the value of the ordinary tilings of life, when all the .facts and circumstances are clearly before him. French v. Millard, 2 Ohio St., 45; Railroad Co. v. Shultz, 43 Ohio St., 282; State v. Beal, 37 Ohio St., 108; Brown v. Moore, 22 Mich., 254; White v. Herman, 51 Ill., 243; Pa. Ry. Co. v. Bunnell, 281 Pa. St., 414; Vol. 5 Am. & Eng. Ency., 65; Mattox v. Lyman, 16 Vt., 113; Baum v. Winston, 3 Met. (Koi.), 177; 19 Am. Dec., 103; 1 Sutherland on Damages, 803; Head v. Hargrove, 105 U. S., 45; Nathan v. Kinson, 4 Kan., 211; Patterson v. Boston, 20 Pick., 159..
   Shauck, O. J.

That the issues joined- cast upon the plaintiff below the burden of proof is not doubted by his counsel. The question presented and discussed is: Should the jury have been permitted to estimate the value of the services from their character and extent, unaided by the opinion of a witness touching such value? It was incumbent upon the plaintiff to present evidence tending to establish the facts from which the promise to pay for the services would properly be implied as well as those which would show the character and extent of the services on account of which a recovery was sought. With respect to such facts, distinguishing them from matters of opinion, the jury cannot be permitted to make any finding favorable to the plaintitff, unless it was within the probative effect of evidence offered. So far at least we have departed from the jury of the vicinage whose personal knowledge of the facts in issue was a substitute for the testimony of witnesses. The substance of the argument in support of the instruction given is that the rule recognized as applicable to facts of such character should extend to questions of value, which must remain matters of mere opinion, however numerous may be the witnesses who testify concerning them. The soundness of this position may be tested by supposing that the plaintiff, instead of alleging that these services were worth three dollars per day, had alleged that they were worth one hundred dollars a day, and had introduced a witness who, under oath, expressed the opinion that they were of that value. Would the jury, in the absence of other opinions from witnesses, have been required to return a verdict for that amount? No one would suppose that they should adopt an opinion so variant from common knowledge. By what process of reasoning could we be conducted to the conclusion that that is indispensable evidence which may be wholly disregarded when given? If cannot be supposed that a jury of twelve men would be required to perform the elementary operations in addition and division by which the average opinion of witnesses would be ascertained. The jury in such a case may reject the opinions of witnesses, if they deem them unreasonable, because the facts touching the character and extent of the services which the plaintiff is required to prove, and which in fhe case before us were proved, are themselves' the subject of consideration by the jurors with a view to the exercise of their own knowledge and the formation of their own opinions as to their value. They may be used to correct the opinions of witnesses as to value, because they are themselves evidence of value. In a case of this character the witness, if placed id possession of the facts correctly assumed in a question, is in no better position for forming an opinion than that occupied by the jurors. We are not without the aid of adjudications upon the question presented. The case of Head v. Hargrave, 105 U. S., 45, was an action for the value of professional services rendered by an attorney-at-law, and upon this question Justice Field said: “It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone was to say to them that the issue should be determined by the opinions of the attorneys and not by the exercise of their own judgment of the facts on which those opinions were given. * * * So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed and from which only in that way they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of the inquiry. * * * Other persons besides professional men have knowledge of the value of professional services; and, while great weight should always be given to the opinions of those familiar with the subject, they are not to be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge; they should control only as they are found to be reasonable. The judgment of witnesses as matter of law is in no case to be substituted for that of the jurors.”

Since this view of the subject has been considerately taken where the services were of a professional character, it should of course prevail in a case where, as here, the services are of such a nature that an intelligent opinion touching their value may be formed from common knowledge. The same view has been applied in cases of the precise nature of this. Craig v. Durrett. 1 J. J. Marsh, 336; Baum v. Winston, 3 Met. Ky., 127. It derives support from other cases cited in the briefs of counsel for the defendant in error;

The argument and citations in support of the instruction given fail to distinguish between facts in issue and opinions founded upon facts proved. The conclusion intimated will not make the verdict final, for the evidence as to the extent and character of the services rendered would come within the consideration of the trial judge on a motion for a new trial, and be presented to reviewing courts by a bill of exceptions. If the excellent opinion by Judge Laubie in McIntyre's Executor v. Garlick, 4 Circ. Dec., 429, 8 C. C., 416, had appeared in these volumes there would have been no occasion for this report

Judgment affirmed.  