*1 it is our Upon our review the record possible inferences
judgment evidence, be drawn probable reasonable and inference
more injuries resulting
that the accident and the proximately
were caused an act of or-
dinary negligence, such as inadvertence
involuntary dozing, rather than a vol-
untary dis- act defendant conscious safety companions.
regard of his It did not
follows sustain the proving gross negligence
burden of and that judgment the district there- court was
fore correct. judgment is therefore affirmed. J.,
BURKE, C. and TEIGEN and
STRUTZ, JJ., concur.
ERICKSTAD, J., deeming himself dis-
qualified, participate, did not CLIFFORD
JANSONIUS, judges one of District, sitting
Fourth in his stead. Judicial
KNUDSON, J., a mem- having been submis- Court at the time
ber of the participate. did not
sion of CORPORATION,
UNITED DEVELOPMENT Respondent, Plaintiff and
v. DEPARTMENT
STATE HIGHWAY Dakota, North State of Defendant Appellant.
No. 8141.
Supreme Court of North Dakota. 18,
Jan. 1965. Rehearing March
On *3 Hankla, Minot, and
McGee, Sickle & Van Bismarck, Crum, Higgins & respondent. 442 Johanneson, Helgi Atty. Gen., Costs, ordinarily, may be recovered Jon Milhollan, Sp. R. Kerian and David L. Asst. statutory cases where there is au Gen., Bismarck,
Attys. therefor, for defendant thority and then ex appellant. tent provided by and in the manner law. 259; p. Am.Jur., Costs § “Costs,” 6, p. Sec. STRUTZ, Judge. Legislative Our Assembly pro- has made appeal Highway This is State vision for by prevailing taxation of costs Department from an award in an of costs party. Chap. 28-26, N.D.C.C. It has also proceeding. eminent-domain The main payment of costs to the owner *4 action, taken, appeal from which no of an property interest in real estate whose jury. was tried After before the court and being by proceed- taken eminent-domain verdict, entry a motion was made for of ings. 32-15-32, Sec. This N.D.C.C. latter judgment and taxation of United costs provides may, section in court its Development Corporation, prevailing discretion, award “reasonable actual or costs, The court made its award of statutory costs or both which include appeal part this and is from that attorney’s reasonable fees.” judgment costs, attorney awarding certain fees, and interest. taxing ordinary The matter of costs in legal actions has seldom been before this Highway Department, The State with court, while the of what costs appeal, its specifica- notice of served five be taxed under Section 32-15-32 of the contending: tions of error Century Code, North Dakota the section granting 1. That the trial court erred providing for the taxation of costs in em- plaintiff; witness fees to that there is proceedings, inent-domain has never been authority no awarding in law for witness before us. fees; event, any the witness excessive; fees awarded the court were We now specifications will consider the assigned error appellant in the 2. awarding That the court erred they order in which are raised. preparation maps for use at trial; First, taxing did the trial court err And, plaintiff witness fees in favor of the ? 3. That the court in its award of erred if taxable, witness fees are under what interest judgment on the amount of the circumstances and in what amount land; plaintiff’s from the date taking they be allowed? awarding 4. That the court erred in right compen of a witness to attorney plaintiff’s attorneys, fees to the purely statutory. sation is Wit in that fees awarded are excessive 35, law, p. nesses 421. At common no § unreasonable; thought paid. witness fees were It was being 5. awarding That the court erred in that justice, at- the administration of torney attorney representing to the a source of mutual members benefit to all ques- society, placed interests of the sellers person of the land in under ob each tion landowner; ligation justice that such a furthering to aid in any way public former duty, owners were not affect- matter of and civic and that every ed appear outcome of the eminent-domain citizen be summoned to could proceeding attorney right and that taxing compensation fees without on his to services attorney doing “Witnesses,” rendered Am.Jur., so. 58 874, p. such former owners was Sec. error. however, Legislative Assembly, 215, Chapter
Our has which thus would make its provided payment provisions of witness fees. controlling if conflicted with 31-01-16, Century provisions Chapter 226, Section North Dakota both of these 'Code, provides chapters passed by in a a witness civil the same session Legislature action given is entitled to receive six dollars a can be effect. We believe day day’s “for each attendance before the is not unreasonable infer ”*** plus Assembly district court ten cents a had both of these in mind Acts actually way. passed mile Chapter 226, when it traveled one now Section 32-15-32 Century of the North Dakota difficulty pro- getting Because Code, by which Legislature experts fessional men who in their for costs prevailing taxed to the fields a to leave their work for so small party proceedings. eminent-domain injustice requiring fee and because of the statute, passing Legislature had in busy professional men to a trial and attend mind that it Chapter had also enacted testify inadequate for so a remunera- limiting the amount which could be taxed as tion, Legislative Assembly thereafter expert fifty costs for witnesses to dollars 28-26-06, enacted Section North Dakota day plus expenses. actual Code, Century provides, part, which *5 expert-witness fees in allowance opinion It therefore is our fifty an amount not to exceed dollars a language statutory “reasonable actual or day plus expense.” such “actual witness’s both,” in costs or as used Section 32-15-32 provides This section further the Century (Chapter of the Code 226 of the expense” paid amount of such “actual to be 1957), interpreted Session Laws of must be expert such discretion of witness is the costs, including to award not in amount trial court. the Legislative excess of sums which the
Assembly expert had for wit 215 (Chapter nesses Section 28-26-06 32-15-32, Section North Dakota 1957). of the Laws In Session other Century Code, provides may, that the court words, charged by if actual fee an ex discretion, in its award reasonable actual pert is maximum witness less than the statutory costs, both, or or in eminent-do by law, fifty day plus fixed his dollars a proceedings. main Such actual reasonable could, expenses, actual in its court statutory or include witness costs would discretion, paid. fee allow actual fees, expert ordinary, well since fees as paid Where the amount maximum types provided for for both of witnesses are law, could, if allowed under the the court statutory provisions law. The various reasonable, allow the such is found to be on taxation of costs must be considered would, In at the same. such event fee and, together possible, apparently if con time, both the actual and the same be flicting provisions should be made to har statutory paid fee. But where the amount monize. statutory to such witness is in excess of the case, limit, áuthority find that these we both of the court has no to award n statuteswere enacted greater fixed the same session a sum than the maximum Legislative Assembly. agree ar of the Section 28- law. We do not with counsel’s fees, 26-06(5), expert-witness gument paid providing for the actual where fees Chapter pro 215 fee was reenacted as a excess of the maximum Laws, Legislative 32- the 1957 whereas Section vided the same session of Session statutory providing Assembly, actual or 15-32, for taxation “reasonable court to proceedings, enacted costs or both” would authorize the eminent-domain Chapter payment the actual witness 226 of the 1957 Session Laws. allow paid, Chapter though such fees are far While it is true that 226 was fees even signed by signed maximum fixed statute. after he had excess of the Governor proceeding, testimony In this the trial court cause his point at that order,” to be taxed for ex trial was allowed various sums “out of appear as would fees, day pert-witness ranging from to be the case us,, from the record $125 before appears discretion,, could, and down. It further such then the trial court in its days not fees were allowed for allow the fees for days such witness for the spent by trial for time certain of he but also attendance at the trial. In de- preparation expert costs, witnesses for termining allowing plaintiff’s Generally, case for witness for good trial. witnesses called in faith on a days plaintiff, be taxed for of at matter which the with some rea- trial, testifying, son, relevant, tendance at the while wait material, believed to be testify, ing waiting give important rebuttal or to his would not be error testimony. though This seems to have been the actually even such witness did not Legislature testify. Ryan Plath, intent of the North Dakota v. 18 140 Wash.2d enacting providing our statute for taxation P.2d But 968. for witnesses who are fees, permits of witness witness fees for not even called not taxed be- day’s testimony witnesses, to be taxed “for each attendance” cause the of such had 31-01-16, they called, before the court. Sec. N.D.C.C. might been have ruled in- been admissible, in which case witness fees for generally have held courts that wit- them against could not be taxed the ad- spent ness fees be taxed time party. Thus, verse fees for attendance of spent in coming going or time dur- testify may witnesses who are called to ing postponement. which a case is in taxed for the time are in attendance 239, 241, pp. Costs 242 at §§ wdtnesses, though they in court as even Therefore, any costs taxed for time testify day, do not each but such witness spent preparation time when prior *6 fees not be taxed a for time witness was not attendance at the trial the attendance of such witnesses at improper. were The witness fees taxed discharge. trial or after their Fees for actually must be limited to the amount any purpose attendance for other than tes- paid such witness for attendance at the may tifying not be taxed as costs. trial, and such amount is not to exceed fifty the limit argues presence fixed statute of dollars Counsel of some day plus expenses. a expert actual necessary of the at witnesses was purposes. the trial for consultation We expert-witness In this we find fees believe that the rule laid a down Massa twenty days taxed for and one-half for one chusetts Federal court is reasonable rule. a witness, although the actual trial did not Stone, Cir., In United v. Co. Waterworks take more than that time. one-half of 428, 29 F.2d the court held that fees for find We also that such witness was called purposes attendance for consultation testify. but did not When may wit with counsel not be taxed as witness, placed he was on the stand aas ness fees. testimony, objection, his on was ruled out of order and he was not called thereafter. may The trial exercise court its:
discretion as to the number of witnesses- may any prevailing party for tax which a costs. Whether witness fees should party permitted No should be to call an taxed for such witness as costs would be unlimited number and then within the trial of witnesses the sound discretion of opponent expense. charge his testimony rejected court. If be with his per incompetent, number cause it was fees such What of witnesses should no fact, however, prove any must mitted to one witness be taxed. 20 Costs § trial: p. If, however, be left to the discretion of the he was not al sound testify merely court lowed be- when called ap maps raised If
Another were evidence neces- sarily a witness who used pellant trial, is whether fees for or obtained for use on the voluntarily, the action appears proper. and testifies without of the court trial subpoena, may being served with a be taxed appellant The next contends ap as costs. The mere that witness fact a the trial in awarding court erred in voluntarily, subpoena, pears without would terest on the value of the land time prevent not allowance or taxation of his taking as costs taxed in favor of the actually if he and fees is called testifies previously pointed out, landowner. As qualifies case or otherwise under the be recovered in those cases right rules laid The down herein. to have specifically and for such pro items are depend witness taxed does on vided for statute. Interest from the whether witness was served with taking time of cannot be taxed as costs subpoena, and fees for who attend witnesses statutory authority since there is no voluntarily testify compulsion without permit or taxing. authorize such Interest entitled are to be taxed as costs. be taxed as costs from the time of appellant entry judgment. next the verdict to contends that Section awarding the court erred in 28-26-13 of the Century costs for the North Dakota preparation provides: maps use Code at the trial. expenses preparing maps, Whether “When judgment is for the re- etc., plats, are taxable as disbursements in covery interest, money, from the depend prevailing party favor of the would report time of the of a ref- verdict or
upon maps plats. the nature finally entered, eree judgment until Section 28-26-06 North Cen Dakota computed by must be the clerk and tury provides Code the clerk tax shall added party en- costs of judgment favor of the titled thereto.” prevailing party: “ We consider now will the matter ** * necessary expenses 2. The taxing attorney by the landowner’s taking depositions procuring attorneys. general, attorney evidence necessarily or obtained used spe not be taxed as costs unless * * trial; for use on the *7 cifically by Therefore, authorized statute. parties attorney the question seeking to tax fees as expenses Thus the the of whether bring costs must themselves within the preparing maps of such are taxable would provisions previously noted, the As depend entirely of law. upon maps such whether that, Legislative Assembly the has necessarily are “evidence used or obtained proceedings, in eminent-domain the cou'rt they merely for use on the trial.” If in award its discretion reasonable purposes argu- or convenient useful for of costs “which include reasonable at ment, procuring the cost them of would not torney’s question this fees.” The raised on by taxable prevailing be the But if court, by appeal is trial its whether the maps necessarily such are evidence used to case, of fees in has abused the award this prove case, some fact in or the evidence ob- by given it statute. discretion to trial, tained for use on the the cost be would maps taxable. Since the were not a appears plain- It that the from the record case, in record this we are unable to tiff, litigation, in this the course has of were, fact, determine in whether evi- employed attorneys, and that a number of dence. be taxed costs the court allowed fees to as court, attorney attorneys. The trial The in the exercise its for all such discretion, by plain- expense attempted allowed taxed the such as a dis- to be $9,000. prevailing proceeding in over bursement taxed in favor of the tiff this totaled discloses, however, that the minimum-fee schedule of evidence further The record Bar land- the North Dakota State Association contingent fees which the total attorney attorneys, fees taxed were pay its when to show agreed to owner recovery in the minimum-fee not excessive. While computed the amount of on thereupon Bar $4,650. schedule of the North Dakota Associa- The court court, may binding be attorney tion is not on the fees at the reasonable fixed appellant in determin- considered with other matters asked figure. now are We charged. ing the of the fee the trial court abused reasonableness whether determine to attorney The trial in case some rather allowing this involved discretion its complicated law, questions facts and taxed in this amount. be attorney determination of reasonable changed fee the matter should not be on an attor The reasonableness appeal is unless a clear abuse of discretion prevailing taxed ney’s fee to specifically in- jury shown. The had been depend upon always facts and party must structed in case that the trial court this particular litigation. circumstances of would determine the amount of the reason- in ar be considered are to factors Various attorney fee, able so this matter was not fee, attorney’s in riving at a reasonable arriving taken at the into consideration character of and the cluding the amount jury amount of the verdict. The increased obtained, rendered, the results the .services the amount the award ren customary charge the services $49,800, the amount which had been ability the at dered, and skill of and the deposited court, $81,250, the clerk with may be considered torney. Further matters $31,450. cannot, gain or a on the We attorney a fee an to recover in a suit us, say record all before view of client, financial such as the own from his circumstances, the allowance of an client, prominence but ability or the attorney’s $4,650 unreasonable, fee of is be considered ar such matters the court abused its discretion attorney fee for riving reasonable at a awarding attorney’s fee in that sum. in an eminent- purposes of taxation of costs this determination of court on proceeding. domain question therefore affirmed. case, the landowner started In this The final matter to determined on attorneys. firm proceedings with one appeal trial is the allowance trial, cause not disclosed Before due to some $1,400 attorney court of us, firm was before another the record attorney representing the Homan inter- discharged. employed firm and the first Homans ests. The record discloses that the any litigant prerogative to have It is the property had to the sold the attorneys represent him. any number of plain- Development Corporation, United attornej's change as often He also action, prior commence- tiff in this But, prevailing where a as he desires. *8 proceeding. ment of the eminent-domain attorneys, party hire a number of does deed, and, The sale on for contract permits “reasonable at where the statute title, legal while the Homans had retained torney’s fees,” may he tax but one attor way any affected their interests were not ney’s litigation. fee the The amount of for by proceeding. It is un- the condemnation attorney’s any given such reasonable fee disputed receive the that the Homans would dis case is determined in the sound to be or same amount on their contract whether attorney’s the trial court. The cretion of by originally the not the amount offered fee is not to the attor so allowed awarded finally be the real State was determined to ney but the to client. taken, property that of the even value though plaintiff the should be successful hearing for taxation of At the in- securing increased amount for its plaintiff an introduced costs in this the land, possibility and, in the this would not herein modified, terest as it is affirmed. No- any have entitled the Homans to costs receive allowed to either legal for their increased sum title. Re- gardless of the outcome the eminent- BURKE, J., C. and TEIGEN and! proceeding, domain the Homan interests ERICKSTAD, JJ., concur. exactly
would receive the same amount on their contract. KNUDSON, J., did participate. not attorney taxing matter attorney person representing a for On rehearing. by party action, prevailing a
not a lawsuit, permitted party under to a is not attorney Homan our statute. The for the STRUTZ, Judge. pre family represented at no time the response petition to a any pro filed party capacity in the re-
vailing these spondent landowner, fees, rehearing a ceedings. Any attorney nominal or or- dered question on the substantial, sole may the not be interest. for Homans reargument, After it is plaintiff evident that the re- taxed the as included costs spondent question does not the correctness- prevailing party. the be as To taxable holding our that interest plaintiff, Development from time- the United the taking part not taxed Corporation, prevailing party as the in this costs. merely questions possible It any proceeding, attorney im- services for which plication opinion in our that are claimed must have been rendered for such interest may not be if plaintiff. words, part allowable as prevailing In other interest a damages party is determined at tax such the court costs as the statute permits tax, question the time of hearing on the of costs. to tax such prevailing party items costs which the it opinion not, by implication Our does self has incurred. The inwas no otherwise, pass question on of whether way any attorney liable for which interest is time allowable of tak- attorney family might the Homan ing to the time of verdict. All we charge for rendered in services this mat hold, hold, or intend to is that such interest ter. not taxed costs in fa- improper court, It therefore was for the party proceed- vor prevailing plaintiff, on Develop- motion of United ing. Corporation, party, ment prevailing opinion The court is of the attorney family to tax fees for the Homan questions of interest and other appeal. on This item should be stricken petition raised rehearing were plain- from the costs taxed favor of the correctly original opin- determined tiff, Development Corporation since United ion, opin- and it therefore to such adheres any way legally responsible ion. payment of attorney fees to the Homan Estate. BURKE, J.,
The decision the district court is modi- C. and ER- and TEIGEN ICKSTAD, fied expressed JJ., conform the views concur.