Lotz v. Polizzotto

LB BLANC, Judge (concurring). The principal defense on the part of defendants in rule is that the fees of the expert, J. Pordyce Wood, cannot be taxed as costs, for the reason that he was not in fact a witness in the case on the trial of the main issue; he having never actually testified. The contention is that, in order to receive additional compensation as an expert, under the provisions of Act No. 19 of 1884, he must have been called to testify in court on the matters on which he rested his expert opinion. The defendants, in the trial of their recon-ventional demands to have the notes declared forgeries and canceled, supported their case with the report of the expert hired by them to investigate the signature to the notes. There is no specific mention of an offer of the report in evidence to be found in the record, unless it be contained in the shorthand notes taken at the trial of the reconventional demands on October 24, 1930. These notes are found in an envelope in the record in one of the suits. They were never transcribed. I find, however, that the report of J. Pordyce Wood, the expert, bears a filing mark of the clerk of the court of the same date, October 24, 1930, and that, in my opinion, can hardly be taken to mean anything else but that it was offered in evidence to substantiate the reconventional demands and to prove the forgeries. That ■ being so, the testimony of this expert, in the form in which it is by way of a report, and unobjected to, is in the record, and no doubt was strongly relied on by the district judge in reaching the conclusion that the notes were •forged. With this in mind I now refer to the provisions of Act No. 19 of 1884 relating to the compensation of expert witnesses. The pertinent section reads as follows: “Witnesses called to testify in Court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional eccammatiom, and to state the resitlts thereof, shall receive additional compensation. * * * ” (Italics mine.) I take that provision to mean that such witnesses can claim the additional compensation in either of two cases: First “when called to testify in Court, etc.,” and, second, “when called to make scientific or professional examinations and to state the result thereof.” The disjunctive “or” used after the comma indicates as much. Now, when the statute provides additional compensation for a witness who is called on to state the results of scientific or professional examinations made, does it mean that he must personally appear in court and make that statement, or can the • statement be made in the form of a report and introduced in evidence? I do not see why, in certain cases, like the present for instance, it should be imperative for the expert to have to be placed on the stand to make his statement in order to be entitled to his expert witness fee. In this case, counsel for the plaintiff in rule had been advised that the defendants in rule did not intend to, as in fact they did not, take part in the trial of the reconventional demands. They had been given every opportunity by the district judge to protect their rights against the trial of that demand by applying to the Supreme Court for writs, but they did nothing. Under the circumstances, knowing that defendant’s counsel would not take part, was not counsel for plaintiff in rule justified in saving the expense of having Mr. Wood brought back from Chicago to place him on the stand in court in Plaquemine simply to state orally what was *905 contained in his report in writing,- and which report was a complete statement of the result of his examination and investigation? I believe that the interpretation asked for by counsel for defendants in rule is too restrictive, and that the statute is meant to apply to just such a case as this; that, where the party, who has availed himself of the provisions of the law which grants him the right to employ expert witnesses, and the other party, apprehending his defeat, makes it unnecessary for him to summon the expert on the witness stand, which might entail considerable more expense, the report of the expert stands as the statement of the result of his examination and constitutes expert testimony which entitles him to the compensation provided for in the act. With these additional reasons, I respectfully concur in the decision herein rendered.