Leslie v. Carter

• Decision Date: 05 July 1916
• Docket Number: No. 17968.,17968.
• Citation: 268 Mo. 420,187 S.W. 1196
• Parties: LESLIE v. CARTER.
• Court: Missouri Supreme Court

187 S.W. 1196

268 Mo. 420

LESLIE v. CARTER.

No. 17968.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Mary E. Leslie against S. E. Carter. From a judgment sustaining demurrer to the petition, plaintiff appeals. Judgment affirmed.

Thomas Hackney, of Kansas City, and A. L. Thomas, of Carthage, for appellant. Gray & Gray, of Carthage, for respondent.

WALKER, J.

This is an action to recover the expenses of litigation, including attorneys' fees, alleged to have been incurred by the plaintiff in a former proceeding against the defendant to set aside a deed for fraud, and for an accounting. In the latter action, brought, as was the one at bar, in the circuit court of Jasper county, plaintiff had judgment, and upon an appeal to this court the same was affirmed except as to a correction in the allowance of interest. 240 Mo. 552, 144 S. W. 797.

Defendant demurred to the petition filed in the suit at bar, and from the judgment sustaining this demurrer plaintiff appeals. The amount sued for fixes the jurisdiction of this court.

The grounds on which the sufficiency of the petition was challenged were: (1) That the damages sued for, to wit, the expenses in preparing for trial and attorney's fees, were not recoverable in an action of this nature; and (2) if recoverable they should have been included in the original suit.

I. The weight of authority here and elsewhere is against the right of recovery in actions of this character. Here taxable costs are fixed by statute and do not embrace expenses of litigation, including attorney's fees. The exceptions to this rule created by statute or established by the usage of the courts and familiar to every lawyer are fully stated by Lamm, J., in Johnson v. United Railways, 247 Mo. loc. cit. 348, 152 S. W. 362, 374, and need not be set out here or further adverted to, except to say that expenses of the character here sued for are not included therein. Color for the claim here made is sought in the ruling of this court in State v. Tittmann, 134 Mo. loc. cit. 170, 35 S. W. 579, an action to recover damages for the breach of a curator's bond, in which it was held, more by implication than a direct ruling, that "counsel fees and other expenses of prior litigation were recoverable as damages." Subsequently this court, in Albers v. Merchants' Exchange, 138 Mo. 140, 39 S. W. 473, thus distinguished the Tittmann Case:

"The obligation to pay the attorney's fee in the case did not arise out of the fact that the ward was successful in his suit against his curator, but the liability was determined by the terms of the curator's bond, which, it was properly held, stood good as an indemnity against all the natural and proximate consequences of a breach of duty which the curator owed the ward."

In the Albers Case the plaintiff was attempting to recover attorneys' fees alleged to have been paid by him in resisting the effort of the Merchants' Exchange to remove him therefrom as a member. The conclusion of the court in that case was that costs of the character there sued for could not be classified as damages, and were therefore not recoverable. The court in so ruling declares that:

"The law of this state, in denying a party the right to recover from his adversary the expenses of litigation other than statutory taxable costs, is in harmony with the laws of our sister states."

In the discussion of this case Judge Gantt, speaking for the court, says arguendo:

"Did the circuit court err in holding that the plaintiff was not entitled to recover back this fee because there was no evidence that the directors were actuated by malice in suspending plaintiff from membership, and that in the absence of malice the attorney's fees could not form an element of his damages?"

This language, as was said in Winstead v. Hulme, 32 Kan. 568, 4 Pac. 994, might seem to imply that if it had been shown that malice or oppression had mingled in the controversy, then such costs as are under consideration might be recovered. It is evident, however, from the entire opinion that what the court meant was that if the evidence disclosed that the original action was prompted by malice or oppression, punitive damages might be recovered, and that the amount shown to have been expended by the prevailing party in the litigation could be taken into consideration in fixing the whole amount of the judgment. The court's language sustains our conclusion. We have reference to its declaration "that in the absence of malice attorney's fees will not form an element of plaintiff's damages." Why an element if it constitutes the basis of the plaintiff's right of action? But it does not, and, being only an element thereof, it may simply be taken into account in the presence of malice, in determining the total amount of plaintiff's damages in the event of his recovery. Construed otherwise, the conclusion reached in the Albers Case would not be consonant, as the court declares it to be, with the strong current of authority elsewhere.

The rule announced in the Albers Case has been affirmed in principle in Pickel v. Pickel, 243 Mo. loc. cit. 665, 147 S. W. 1059, the court holding that a fee would not be allowed to plaintiff's attorney as a part of the decree in a suit to set aside a fraudulent transfer of corporate stock. And in Johnson v. United Railways, 247 Mo. loc. cit. 348, 152 S. W. 362, 374, involving the liability of a corporation for rights of action existing against another corporation which had transferred its franchise and assets to the former, the court held that a claim for attorney's fees for prosecuting to final judgments this class of claims against the transferee company would not be allowed, the application therefor being held to be without any authority.

Courts of last resort in many other jurisdictions are not less emphatic in declaring the existence of the rule. In fact many of them, not only hold that expenses of...