Business Men's Assur. Co. v. Campbell

• Decision Date: 22 March 1927
• Docket Number: No. 7518.,7518.
• Citation: 18 F.2d 223
• Parties: BUSINESS MEN'S ASSUR. CO. OF AMERICA v. CAMPBELL.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 223 (1927)

BUSINESS MEN'S ASSUR. CO. OF AMERICA v. CAMPBELL.

No. 7518.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1927.

Solon T. Gilmore, of Kansas City, Mo. (T. F. Hamer, of Kearney, Neb., and John Gilmore, of Kansas City, Mo., on the brief), for plaintiff in error.

W. A. Prince, of Grand Island, Neb. (Harold A. Prince, of Grand Island, Neb., Fred A. Nye, M. H. Worlock, and Barlow Nye, all of Kearney, Neb., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge.

This is the second time this cause is before us on writ of error. On the former hearing the cause was reversed. 6 F.(2d) 540. The issues involved are set out fully in the opinion in that case and need not be again stated. On the second trial both parties requested a directed verdict, the court sustaining that of the plaintiff.

It is too well settled to require citations of authorities that, if both parties to the action request, at the conclusion of all the evidence a directed verdict, and no other requests are made, the direction of a verdict is equivalent to a verdict of a jury.

At the former hearing this court held that, one "`supervising' a business * * * did not necessarily exclude the doing of any manual labor, and that, whether insured was at the time engaged in actual duties not fairly included in supervising his business was a question of fact, to be established by evidence and determined by the jury." This is the law of the case. The evidence was conflicting, and would have warranted, if submitted to the jury, a verdict for the plaintiff. Each of the parties having requested a directed verdict, the ruling of the trial judge is conclusive in this court.

The court allowed an attorney's fee of $1,500 to be taxed as a part of the costs against the defendant, in conformity with the statute of Nebraska. Objection to this allowance was made at the time, and an exception saved.

It is contended on behalf of the defendant that, as the statute of the state requires this allowance to be taxed as costs, it is unenforceable in a court of the United States, as Congress provided for costs in that court, and none other can be taxed in a court of the United States.

In our opinion this applies only to ordinary costs, and not to allowances for attorneys' services provided by state statutes in certain actions. Similar statutes of states have been uniformly sustained by the courts of the United States. Fidelity Mutual Life Association v. Mettler, 185 U. S. 308, 22 S. Ct. 662, 46 L. Ed. 922; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 355, 23 S. Ct. 126, 47 L. Ed. 204; Home Life Ins. Co. v. Fisher, 188 U. S. 726, 23 S. Ct. 380, 47 L. Ed. 667; Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S. 301, 304, 23 S. Ct. 565, 47 L. Ed. 821; Globe Indemnity Co. v. Sulpho-Saline Bath Co., 299 F. 219 (C. C. A. 8), certiorari denied 266 U. S. 606, 45 S. Ct. 92, 69 L. Ed. 464; Hartford Fire Ins. Co. v. Wilson & Toomer Fert. Co., 4 F.(2d) 835, 838 (C. C. A. 5).

In the Globe Indemnity Case, supra, this statute of Nebraska was upheld by this court. Missouri Pacific Ry. Co. v. Larabee, 234 U. S. 459, 34 S. Ct. 979, 58 L. Ed. 1398, relied on by counsel for plaintiff in error, is inapplicable to the issue in the case at bar.

In that case the Supreme Court of Kansas awarded to the plaintiff an allowance to attorneys for services rendered in the Supreme Court of the United States, to which court the cause had been removed by writ of error, in addition to the fee allowed for services in the state courts. The court in reversing this allowance held:

"It seems surperfluous to put the question since its very statement conveys of necessity a negative answer. For how on the face of the question, consistently with the most elementary principles of our constitutional system of government, can it be possibly assumed that a state statute could be made operative in the Supreme Court of the United States, to the disregard of its settled rule of procedure and of the principles which had guided its conduct from the beginning, directly sustained by express rule adopted under the sanction of Congress?" Page 471 (34 S. Ct. 984).

The lawmakers, in enacting this statute, evidently intended to meet the ruling in Railway Co. v. Ellis, 165 U. S. 150, 17 S. Ct. 255, 41 L. Ed. 666, where the imposition of an attorney's fee on the unsuccessful defendant was held void, as being a penalty, and was distinguished in the Mettler Case.

The statute was clearly intended to prevent insurance companies refusing payment of losses on frivolous grounds, and the delays incident to litigation, evidently, to avoid the ruling in the Ellis Case, it was provided that the attorney's allowance be taxed as costs, instead of having it declared a penalty.

In construing statutes, it is the duty of the courts to give effect to the intent of the lawmakers. As held in Stewart v. Kahn, 78 U. S. (11 Wall.) 493, 504 (20 L. Ed. 176): "A case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning." Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Ozawa v. United States, 260 U. S. 178, 43 S. Ct. 65, 67 L. Ed. 199; Clark v. Mechanics' American Bank, 282 F. 589, 591 (C. C. A. 8). It is beyond question that this act was not intended to make such allowances ordinary costs as are fees of court officers or attorney's docket fees. Such allowances are made to the plaintiff and not to the counsel. Stuart v. Boulware, 133 U. S. 78, 10 S. Ct. 242, 33 L. Ed. 568. The objection is without merit.

The allowance of $1,500 as the attorney's compensation is excessive. An appellate court will not ordinarily substitute its judgment for that of the trial court. But, when that court falls into error, and makes an unreasonable allowance, it amounts to an abuse of discretion, and appropriate relief must be granted. Newton v. Consolidated Gas Co., 259 U. S. 101, 105, 42 S. Ct. 438, 66 L. Ed. 844. In that case no appeal had been taken from the order touching the matter of compensation to the special masters. The Supreme Court, of its own motion, considered the allowances excessive, and an abuse of discretion, and reversed the case on that point, with directions to fix the same at not exceeding $49,250. The allowances by the trial court were for $119,000.

In Missouri Pacific R. R. v. C. E. Ferguson Sawmill Co., 235 F. 474, this court reversed the court below, for having...