Kansas City Southern Railway Company v. Marx

• Decision Date: 09 April 1904
• Citation: 80 S.W. 579,72 Ark. 357
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. MARX
• Court: Arkansas Supreme Court

80 S.W. 579

72 Ark. 357

KANSAS CITY SOUTHERN RAILWAY COMPANY v. MARX

Supreme Court of Arkansas

April 9, 1904

Appeal from Polk Circuit Court WILL P. FEAZEL, Judge.

Action by A. Marx against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

STATEMENT BY THE COURT.

A. Marx took passage on a local freight train of the defendant company from Mena to Jameson, Ark. At one of the stations when the train stopped enroute, the caboose in which plaintiff rode was cut loose or separated from the train, and when the train was backed up to the caboose again, through the negligence of the engineer in charge of the train, it struck the caboose with considerable force, which resulted in some injury to plaintiff. He brought an action against the company for damages, and on the trial in the circuit court the jury found in his favor, and assessed his damages at $ 75, for which sum the court gave judgment. On the following day the plaintiff asked the court that he be allowed a reasonable attorney's fee, to be taxed as costs against the defendant, and thereupon the court allowed him an attorney's fee of $ 75, and gave judgment that plaintiff recover the same from the defendant as part of his costs. The defendant objected, and saved its exceptions. And afterwards its motion to rehear being overruled, it appealed.

Judgment reversed and motion dismissed.

Lathrop Morrow, Fox & Moore, Read & McDonough, for appellant.

The plaintiff was not entitled to a judgment for attorney's fee under section 6218 of Sandels & Hill's Digest. 66 Ark. 543; 165 U.S. 162. Statutes allowing an attorney's fee must be strictly construed. 12 Ark. 60; 5 Am. & Eng. Enc. Pl. & Pr. 110; 47 Ark. 442; 61 Ark. 407; 60 Ark. 194; 5 Am. & Eng. Enc. Pl. & Pr. 111, 124. Generally, attorney's fees are not recoverable. 21 Ark. 431; 37 Ark. 605; 36 Ark. 191; 42 Ark. 97; 49 Ark. 492.

OPINION

RIDDICK, J. (after stating the facts).

The only question raised by this appeal is whether, in an ordinary action by a passenger against a railway company to recover damages for injuries received on account of the negligence of an employee of the company, and when no statutory regulation of the state has been violated, the plaintiff may, if he makes out his case, recover, in addition to his damages, a reasonable attorney's fee. The statute of 1887 provides that in all actions against railway companies "for the violation of any law regulating the transportation of freight or passengers" the plaintiff if successful, shall also recover a reasonable attorney's fee, to be taxed as part of the costs. But this provision, we think, refers to actions against railway companies for violations of statutory regulations of the state in regard to transportation of freight and passengers, for, if we should hold that it applied to all actions arising against railroads in the carriage of freight or passengers, whether any statute had been violated or not, it is doubtful if it would be a constitutional law (Gulf, Colorado & Santa Fe Ry. v....