delivered the opinion of the Court:
This аction was commenced before a justice of the peace, to recover the value of five hogs alleged to have been killed by a train on the railroad of thе defendant. The case was appealed to the circuit court, and there tried before the court and a jury, resulting in a verdict for the plaintiff for $55, upon which judgment was rendered, аnd on appeal to the Appellate Court for the Third District it was affirmed, and an apрeal taken to this court, the requisite certificate having been made.
The suit was brought under the act of the General Assembly relating to fencing by railroad companies, approved May 29, 1879. (Laws 1879, 224, 225.) The act imposes on all railroad companies the duty of fencing their trаcks, maintaining cattle-guards, etc., and then uses the following language: “And when such fences or cattle-guards are not made as aforesaid, or when such fences or cattle-guards are not kept in good repair, such railroad corporation shall be liable for all damages which may be done by agents, engines or cars of such corporation to suсh cattle, horses, sheep, hogs, or other stock thereon, and reasonable attоrney’s fees, in any court wherein such suit is brought for such damages, or to which the same may be aрpealed, ” etc.
On the trial in the circuit court, the court, against the objection of dеfendant, admitted evidence that $15 was a reasonable attorney’s fee for attending tо the suit in that court, and the court instructed the jury that if defendant was liable for damages, it was also liable for reasonable attorney’s fees in the case. The propriety of the allowance of the attorney’s fee is the only question which is presented.
It is objected, first, thаt no claim for attorney’s fees was filed with the bill of particulars in this case; that that was simply a memorandum of the stock killed, and its value, and no notice was given defendant of such a сlaim for attorney’s fees until the witness was called to prove their value. In respect оf this we think the statute itself is sufficient notice to the defendant that the claim will he made, and the defendant should be prepared to make any resistance to it.
The next objection is, thаt the attorney’s fee can not be included in the same judgment for damages done to stock by the company’s trains. It is said that the statute gives an attorney’s fee, but that the right to it is not perfect till the performance of the service for which it is given, and that it is a fixed rule of law that no recovery can be had in any suit, except for causes of action perfected before the commencement of the suit. Although this be the general rule of the common law, it is competent for the legislature to vary it in any given case, so that we need but inquire hеre what was the legislative intention in this regard. The liability for attorney’s fees exists at the time the suit is сommenced. It arises at the same instant with the suit for damages, and although it be that the services for which the attorney’s fee is given are performed during the progress of the suit, the fee mаy most fitly and conveniently be assessed in the same suit with the damages. There is no substantial reason why the plaintiff should be put to an additional suit for the recovery of the attorney’s fee. The law does not favor the multiplicity of suits. The mere technical reason that the attornеy’s services had not been rendered at the time of the commencement of the suit, should wеigh nothing against the intendment of the statute. The liability which is created by the act is for the damagеs and attorney’s fees conjunctively, and, in our opinion, it was the intention of the legislature that they should be assessed together in one and the same action, such intention being derived from the language of the act.
The further objection is made that this provision for attorney’s fеes is unwarrantable, as being special legislation, in singling out one class of corporations and attaching this liability to one class of cases. This provision may be upheld as being in the nature of a penalty for non-compliance with the statutory duty of fencing. The requiremеnt of the fencing of railroad tracks is not alone for the private benefit of the owners of stock along their lines, but it has respect to the public welfare as well, as a measure for the safety of travel on railroads. As a police regulation for the promotion of the public safety in that respect, the legislature may well require the fencing of their railroad tracks by railway companies, and provide penalties for securing performance of the duty.
The judgment must be affirmed.
Judgment affirmed.