103 Neb. 654 | Neb. | 1919
Lead Opinion
This is an action at law brought by plaintiff, a produce dealer of Omaha, to recover $147.61 as damages to a carload of cheese shipped from Plymouth, Wisconsin, Davis Brothers Cream Company, on June 13, 1914, and consigned to the plaintiff at Omaha.
The defendant company recognized this car was to be delivered at the warehouse, and finally caused it to be switched over there. The Union Pacific Railroad tracks alone accommodated the Fairmont Creamery warehouse, but there was a delay in getting this car over to the warehouse, and it was during this delay that the damage complained of was caused. The weather at the time of this shipment was very hot, and the ice getting out of the car left the cheese subject to the hot weather without ice during the three or four days that it lay in the Omaha yards, thus causing the damage complained of. The defendant claims that, when it delivered the ear to the Union Pacific, its liability ceased, and that whatever damage resulted it was not responsible for. The plaintiff insists that the defendant contracted to deliver the car to plaintiff’s warehouse, and that it procured the services of the Union Pacific Railroad Company to so place the car there, and paid for its services. It is claimed that the defendant delivered the car to the Union Pacific Railroad Company according to the usual method and custom employed in delivering shipments to connecting carriers, and the record shows that upon arrival the car was ordered delivered to the Fairmount Creamery Company, and it is also a matter .of record that the car was transferred to the Union Pacific. These in the main are the facts at issue in this case. The plaintiff alleges two grounds for recovery in the issues hereby tendered: “ (1) Negligence of the defendant company in its transportation of the car with knowledge of its perishable contents, and before final delivery of the car to the plain
The defendant admitted the receipt on June 13, 1914, of the car at Plymouth, Wisconsin, consigned to the plaintiff, and denied all its charges of negligence, and alleged the defendant transported the shipment to Omaha strictly in accordance with its instructions, and claimed further that the car arrived in Omaha on the 17th of June, .1914, at 2:30 a. m., and that the plaintiff was duly notified of the arrival of the car, and that at plaintiff’s special instance and request the defendant delivered the car to the Union Pacific Railroad Company, and had it switched to the warehouse of the Fairmont Creamery Company by the Union Pacific Railroad Company, that the former should notify the latter of all ears to be switched to it for unloading, and that the • Union Pacific Railroad Company did switch this' car to the Fairmont Creamery Company, which plaintiff used for unloading, promptly upon receipt of notice to do so. The case was tried on these issues, and the jury rendered a verdict in favor of the plaintiff for the sum of $181.62.
The plaintiff also requested allowance of an attorney’s fee, and the record discloses that there was allowed the sum of $75 for this purpose. From this situation, or state of facts, the defendant appeals. There are two issues to be determined: (1) Was the defendant negligent or responsible for the delay caused in the delivery, under the Nebraska' statute, of these goods to the plaintiff herein? and (2) is defendant liable for an attorney’s fee?
This was an interstate shipment under the following described bill of lading: “Received * * * at Plymouth, Wisconsin, June 13, 1914, from the Davis Brothers Cheese Company, the property described below in apparent good order, except as noted (contents and condition of contents of packages unknown) * * * which said company agrees to carry to its usual place of delivery at said destination consigned to Marsh & Marsh, destination Omaha, State of Nebraska.”
It also appears the defendant examined the condition of this car and agreed to settle for all damages. We have examined the instructions, and it would seem that the defendant has no cause of complaint as to any of them, because they were favorable to the issues of the defendant.
Complaint is also made that the allowance by the court of an attorney’s fee of $75 is wrong, and should not be permitted to stand. The record shows that this was an interstate shipment; that the shipment began in Wisconsin and ended in Omaha. We suppose this claim was allowed under section 6063, Rev. St. 1913. The provision of this statute, so far as it applies here, is as follows: “In the event such claim, which shall have been filed as above provided within ninety days from the date of the delivery of the freight in regard to which damages are claimed, is not adjusted and paid within the time herein limited, such common carrier shall be liable for interest thereon at 7 per cent, per annum from the date of filing of such claim, and shall also be liable for a reasonable attorney’s fee to be fixed by the court.” Seven per cent, is the legal rate of interest in this state in the absence of contract. The court named $75 as an attorney’s fee. The amount is not exorbitant or unreasonable, but the serious question is: Can this statute above quoted be made applicable to an interstate shipment?
The statute under consideration provides for the allowance of attorney’s fees in all cases where claims for loss or damage for which a common carrier may be
The judgment of the district court must be
Aeeirmed.
Concurrence Opinion
concurring.
The defendant received this property for shipment from a point in Wisconsin to Omaha. When it arrived in Omaha, it remained at defendant’s station and yards several days, which delay in delivery caused the damage complained of.
1. The first question presented is whether the defendant had undertaken to deliver the goods to the con
2. The second question presented is as to the defendant’s libility for an attorney’s fee. Section 6063, Rev. St. 1913, provides: “In the event such claim, which shall have been filed as above provided within ninety days from the date of the delivery of the freight in regard to which damages are claimed, is not adjusted and paid within the time herein limited, such common carrier .shall be liable for interest thereon at 7 per cent, per annum from the date of the filing of such claim, and shall also be liable for a reasonable attorney’s fee to be fixed by the court.” The trial court fixed an attorney’s fee of $75. As this was an interstate shipment, and congress by the act of 1906 has provided the liability for loss or damage in interstate shipments, the states cannot add any liability for damage; and the question is whether this is an attempt to do so. If the attorney’s fee is an additional burden upon interstate commerce, it cannot be allowed by the state. If it is merely a provision in regard to the local costs of the litigation, which was made
The decision of the supreme court of the United States in Charleston & W. C. R. Co. v. Varnville Furniture Co., 237 U. S. 597, is not in conflict with this view. In that case, the statute of South Carolina made the liability of the last .carrier extend “to losses on other roads in other jurisdictions and increases it by a fine difficult to escape;” whereas the Carmack amendment “requires the initial carrier to issue a through bill of ladiug and makes it liable for all damage anywhere on the route.” This, the court say, “cannot be sustained as a help to the
I, therefore, concur in the conclusion reached by the majority upon this point.
Dissenting Opinion
dissenting.
A law which requires a litigant to pay the attorney’s fees of the opposing party if he is defeated, and which does not require the opposing party to pay his attorney’s fees if he wins is in the nature of a law imposing a penalty. No other conclusion is reasonable. It1 would amount to a denial of the equal protection of the laws, unless enacted as a police regulation to prevent a common wrong in the refusal by carriers to entertain and pay just claims. I seriously doubt the existence of such customary wrong at the present time.
To me it is equally apparent that such a law must be a burden upon commerce. As a matter of business prudence, the common carrier will pay doubtful claims, small in amount, rather than run the risk of having finally to pay not only the claim, but, in addition thereto, an attorney’s fee that may amount to more than the claim.
It cannot be assumed that resistance of a claim is wrong, although it is finally upheld in court. Such presumption arises only by relation.
The law does not denominate the attorney’s fees as costs. If it did, and the amount was limited and the right restricted, a different question might arise. This fact, it appears to me, distinguishes the case in hand from the federal cases cited. The statute uses the words, “reasonable fee. ’ ’. The word ‘ ‘ reasonable, ’ ’ under the previous decisions of this court, is hardly restrictive. If $100 worth of service is performed by the attorney in prosecuting a $10 or $25 claim, his reasonable fee is $100.