Atchison, Topeka & Santa Fe Railway Co. v. Citizens Traction & Power Co.

16 N.M. 163 | N.M. | 1911

OPINION OP TH® COURT.

ROBERTS, J.

The main question at issue in this case has been decided adversely to the appellee in case No. 1345, Atchison, Topeka and Santa Fe Railway Company v. Citizens Traction and Power Company, decided at the present terms of this court. It is unnecessary to review in this case the law involved, as a reference to the case named will fully disclose the reasons for the holding.

1 The lower court, in the original action instituted by the appellant, having construed "section 13, of chapter 97, of the Acts of 1905, as not applying to the crossing of the tracks of a steam railroad by the tracks of an electric railway, operating under a franchise from the city council, dissolved the injunction; or, having intimated that such would be the action of the court, it was highly improper for the appellant, under the guise of desiring the time to file an amended complaint, to take advantage of the appellee, and so change its tracks at the proposed point of crossing as to obviate the force and effect of the decision of the lower court. Having done so, it was perfectly proper for the court to issue a mandatory injunction commanding the appellant to restore the status quo, and, if the order had gone no further, the action of the lower court would have been proper, even under the decision of this court in the case of Atchison, Topeka and Santa Fe Railway Company v. Citizens Traction and Power Company, No. 1345; but, the court enjoined the appellant from, in. any manner, interfering with the appellee in the laying of its tracks across appellant’s railroad. This, we have held, appellee had no right to do, save by agreement between the parties, or, upon application and determination by the court of the manner and place of crossing.

2 The only additional errors assigned which need to be considered by the court are the fourth and fifth, which are as follows: “4th. The court erred in entering judgment against the appellant for costs, including costs for attorney’s fees, in the amount named in the judgment, or in any other amount.” '“Sth. The court erred in refusing to allow a supersedeas to appellant in-so-far as the mandatory part of the injunction is concerned.” The fifth assignment of error is disposed of adversely to the contention of appellant, by the opinion of this court in the case of Thomas C. Gutierrez v. The Territory of New Mexico ex rel. Y. J. Curran et al., 13 N. M. 30. The court there held that the remedy for an erroneous refusal of an appeal for supersedeas, is by mandamus,, and not by error, citing a great many authorities to sustain tbe doctrine. Consequently, on this appeal, the fifth ground of error will not be considered.

3 The fourth ground of error presents more difficulties. The appellee, in its complaint, based its sole claim for damage upon the money which it was required to expend for attorney's fees and in preparing maps and exhibits. While, it is true, the prayer in the complaint is for damages in the sum of four hundred and fifty dollars generally, yet we must look to the complaint itself to determine upon what the claim for damages is based. Kingston v. Walters, 14 N. M. 368. The question, therefore, presents itself, as to whether or not attorneys fees can be awarded the plaintiff, either as costs or damages, in an action of this nature. In the case of Day v. Woodworth, 13 How. 362, which was an action in tort, the lower court instructed the jury as follows: “That, if they should find for the plaintiff on the first ground, viz: That the defendant had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then, the jury would allow in damage the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, and not anything for counsel fees or extra. compensation to engineer” This instruction was excepted to,, one of the giounds being, that the court should have instructed the jury to include in their verdict for the plaintiff, not only the actual damages suffered, but his counsel fees and other expenses incurred in prosecuting the suit. „ The court held, that the instruction was proper, and, in passing on the question, said: “If the jury may, if they see fit, allow counsel fees and expenses as a part of the actual damages incurred by the plaintiff, and then the court add legal costs de incremento, the defendants may be truly said to be in misericordia, being at the mercy, both of court and jury. Neither the common law nor the statute law of any state, so far as we are informed, has invested the jury with this power or privilege. It has been sometimes exercised by the permission of courts, but its results have not been such as to recommend it for general adoption, either by the courts or the legislature." In Oelrichs v. Spain, 82 U. S. 211, the court held that counsel fees were not recoverable on an injunction bond.

4 While there is some conflict of the authorities, the general rule, supported by the greater number of cases, undeniably is, that counsel fees, as a mere element in determining the. amount of damages, should not be taken into consideration, whether the action is one ex contractu or ex delicto. In Howell v. Scroggins, 48 Calif. 356, the court below had instructed the jury, that they were not limited, in assessing damages, to mere compensation, but might give exemplary damages, and could take into consideration the plaintiffs expenses in prosecuting the suit. The appellate court, after a review of the cases, reversed the judgment, and, in doing so, said: “The damages found by the jury .were not excessive, but, if we could feel at liberty to disregard the court below or were satisfied that it did not influence the action of the jury, we should affirm the judgment.” The doctrine of this case was reaffirmed as to the disallowance of counsel fees as element of damages, in an action of trespass i)n the case of Falk v. Waterman, 49 Cal. 224. In the case of Earl v. Tuppen, 15 Vt. 275, the court, through Whittier, J., said: “The great weight of authority seems to be opposed to the allowance of counsel fees and other expenses of litigation bejrond taxable costs as an element of damages even in cases where exemplary damages are proper.” See, also, Hogley v. Watson, 45 Vt. 289; Kelly v. Rogers, 21 Minn. 146; Fairbanks v. Whitter, 18 Wis. 301. See, also, Reggio v. Breggiotti, 7 Cush. 166, where it is said: “But the counsel fees cannot be allowed. These^ are expenses incurred by the party for his own satisfaction, anl they vary so much with the character and distinction of counsel that it would be dangerous to permit him to impose such a charge upon his opponent, and the law measures the expenses incurred in the management of a suit by the taxable costs.” This court held in Dame v. Cochiti Reduction and Improvement Company, 13 N. M. 10, that, “In the absence of any allegation and proof of an agreement to pay counsel fees, such fees cannot, unless specially provided for by statute, be awarded as costs or otherwise.”

5 We believe it would be establishing a bad precedent to say that counsel fees may be recovered, as an element of damage by the plaintiff, where he is compelled to institute injunction proceedings to protect some right which he lias, and which is being violated by a defendant. It might have been possible for the appellee to have cited the appellant for contempt of court; and, under the rule laid down by this court in Costilla Land and Investment Co. v. Allen, 15 N. M. 528, the court, perhaps, might have imposed a fine, and directed that the same be paid to the appellee by way of reimbursement. Under the greater weight of authority,, it is apparent that the court erred in awarding damages, based solely upon the expense incurred by appellee for counsel fees and preparation for the hearing. For the reasons above stated this cause is reversed.

Frank W. Parker, A. J., and Edward R. Wright, A. J., concur in the result.