Cox v. Maddux
| Decision Date | 20 June 1968 |
| Docket Number | No. LR-65-C-184.,LR-65-C-184. |
| Citation | 285 F. Supp. 876 |
| Parties | John William COX, Plaintiff, v. Roy MADDUX et al., Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
Walter G. Riddick, Asst. U. S. Atty., Eastern Dist. Ark., Little Rock, Ark., for plaintiff.
James Gannaway, of Gannaway & Darrow, Little Rock, Ark., for defendants.
This is, or rather was, a suit at law brought to recover damages for personal injuries and wrongful death. The suit arose out of an automobile accident which occurred in Pulaski County, Arkansas, and which involved an automobile operated by Rev. Roy Maddux, a citizen of Arkansas, and a pick-up truck belonging to the United States Navy and occupied by enlisted naval personnel. As a result of the accident Maddux sustained severe personal injuries and his wife was killed. John William Cox, who was riding in the Government vehicle, sustained personal injuries and commenced action against Maddux. Maddux answered and denied liability; he also filed a counterclaim against Cox and a cross-claim against James Darrell Melton who was operating the Government truck at the time of the accident. The Government entered the case on behalf of Cox and Melton; in addition to providing them with a defense the Government asserted certain claims against Maddux.
The case was tried to the Court without a jury and was submitted on oral testimony, two depositions, sketches of the scene of the accident, and numerous photographs. In due course the Court filed a memorandum opinion holding, among other things, that Maddux was not entitled to any personal recovery against the Government although he was entitled to recover in his capacity of executor of his wife's estate. The basis of the Court's holding was that the accident was proximately caused by the concurrent negligence of Maddux and Melton, and that they were equally to blame. That finding barred Maddux's right of recovery in view of the provisions of the Arkansas Comparative Negligence Statute. Ark.Stats., Ann., § 27-1730.1.
The Court of Appeals reversed and taxed appellate costs against the Government. Maddux v. Cox, 8 Cir., 382 F.2d 119. On remand, the Court reconsidered the record in the light of the opinion of the appellate court and awarded Maddux a substantial sum of money as compensation for his injuries and for mental anguish endured by him on account of his wife's death. There was no appeal from that decision.
On March 8, 1968, counsel for Maddux filed with the Clerk a bill of costs amounting to $1,363.94, including $698.70 appellate costs. Other claims appearing in the cost bill are:
Clerk's Fees $ 5.00
Fees of the Marshal 13.52
Fees of the Court Reporter for
an original and two copies
of the trial transcript 242.50
Statutory witness fees 16.00
Expenses of photographs 76.22
Deposition expenses 312.00
The cost bill was served on the United States Attorney, and on March 12 he filed a motion objecting to certain items included in the bill. The Government's objections go to the cost of copies of the trial transcript, all expenses for photographs, and all expenses of depositions, including the cost of copies of depositions to the extent that copies were made. The Government does not object to paying for the original of the trial transcript, or to paying the ordinary fees of court officials and witnesses; and, of course, the Government cannot and does not object here to paying the costs taxed by the Court of Appeals.
The questions presented are rather important ones, and the Court has given them careful consideration.
Between the effective date of the Federal Rules of Civil Procedure in September 1938 and the revision of the Judicial Code of the United States in June 1948 the matter of costs in the federal courts was governed by Rule 54(d) read in connection with 28 U.S.C.A., former edition, section 830, which statute was derived from the Act of February 26, 1853, 10 Stat. 161, 168.
Rule 54(d), insofar as here pertinent, provides that costs are to be allowed as of course to a prevailing party "unless the court otherwise directs." Section 830 of former Title 28 U.S.C.A. provided that:
Prior to the adoption of the Rules the federal courts in actions at law had no discretion with respect to awarding costs to a prevailing party. However, in equity cases the federal courts did exercise discretion in the matter of costs. That discretion could operate in two ways; depending on the circumstances of particular cases the federal equity courts could withhold or apportion costs; further, the equity courts had the power of allowing as costs certain items of litigation and pre-litigation expenses not ordinarily thought of as costs proper and sometimes called costs "as between solicitor and client." See Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; Banks v. Chicago Mill & Lumber Co., E.D.Ark., 106 F.Supp. 234; Andresen v. Clear Ridge Aviation, Inc., D.C.Neb., 9 F.R.D. 50.
When procedural differences between law and equity were eliminated by the Rules, the permissive language of Rule 54(d) gave to the district courts in law actions at least the same discretionary power to withhold or apportion costs which they had possessed historically with respect to suits in equity.
When the Judicial Code was revised in 1948, there was included in the revised Code section 1920 which is as follows:
In Banks v. Chicago Mill & Lumber Co., supra, Judge Lemley allowed as costs in an equity suit expenses of taking and transcribing depositions on which the case was submitted and the expenses of preparing certain maps and charts of the area in controversy, which items were necessary to a proper understanding and disposition of the case. In the course of the opinion the Court noted the difference between items of costs which are generally allowed as a matter of course, although not as a matter of right, and which the Court called "statutory costs," and items of expense to be allowed only as a result of the application of judicial discretion.
About a year and a half after Banks was decided, Judge Miller of the Western District of Arkansas had before him the question of whether the expenses of certain discovery depositions not used in evidence should be taxed as costs. Farrar v. Farrar, W.D.Ark., 106 F.Supp. 238.2 Farrar was an action brought to recover possession of certain securities and probably would be characterized technically as an action at law although it had a number of equitable overtones. Judge Miller was of the apparent view that it made no difference whether the case sounded in law or in equity, and he determined that in the light of the facts and circumstances of the particular case the expenses incurred by defendants in taking the deposition of plaintiff should not be allowed.
More recently, in United States v. 353 Cases Etc. of Mountain Valley Water, W.D.Ark., 195 F.Supp. 685, a suit brought by the Government to condemn certain property under the provisions of the Federal Food, Drug & Cosmetic Act, Judge Miller refused to allow as costs witness fees and mileage payments to a number of Government witnesses whose testimony turned out to be unnecessary as the case was finally developed; he also denied expenses incident to the taking of certain depositions. However, he did tax as costs the full expense of the transcript of the trial, the expenses of some depositions, and the cost of photographing certain exhibits.
The adoption of Rule 54(d) raised a somewhat troublesome question as to whether the Rule extended to suits at law the discretion to tax in exceptional cases costs "as between solicitor and client." Judge Delehant raised that question in Andresen v. Clear Ridge Aviation Corporation, supra, 9 F.R.D. at 53-54, but was not required to answer it because Andresen was a conventional suit in equity for an injunction to abate an alleged nuisance.
In 1920 the Supreme Court in Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919, held that in an exceptional case at law the trial judge in his discretion could direct that certain expenses not normally taxable as costs be incurred and ultimately taxed. In 1961 Peterson was followed in Euler v. Waller, 10 Cir., 295 F.2d 765, a personal injury case. The prevailing party had introduced in evidence a map of the accident scene and later sought to have the cost of the map charged against the losing party. The Court refused the requested taxation, stating (p. 767 of 295 F.2d):
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