Hines v. Taylor

| Fla. | Mar 3, 1920

Wills, Circuit Judge.

This writ of error was taken to a judgment for damages for live stock killed on a railroad. The verdict found the value of one animal to be $75.00, and of two others to be $45.00 each. The judgment awards double damages for the first and actual damages for the other two animals, and allowed $47.50 as attorney-fees. The statute in one class of cases allows the recovery of double damages and all costs, “which costs shall include a reasonable attorney’s fee, said fee to be determined by the court.” Sec. 1, Chap. 5214, Acts of 1903, S'ec. 2875, Compiled Laws, 1914. -

This action being in effect against the United States by its permission pursuant to the Act of Congress of 1918 and the General Orders issued thereunder,, the penalty portion of the statute is not applicable; but the provision for a reasonable attorney’s fee is taxable as costs and not as a penalty. Under the evidence a reasonable attorney’s fee was adjudged to be $25.00 for settling the pleadings, and 15% on the recovery. This would be $25.00 plus 15% of $75.00, making a total of $36.25 attorney’s fees.

The plaintiff below will be permitted to enter a remittitur for all the judgment except $75.00 for one animal and $45:00 eaoh for the other two animals, and $36.25 for attorney’s fees, besides court costs, upon which the judgment will stand affirmed for the amounts stated above.

Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be and the same is hereby affirmed, upon the entering of a remittitur as stated in the opinion.

Browne, O'. J., and Taylor, Whitfield, Ellis and West, J. J., concur.