Southland Life Ins. Co. v. Norton

• Decision Date: 02 May 1928
• Docket Number: (No. 1094-4998.)
• Citation: 5 S.W.2d 767
• Parties: SOUTHLAND LIFE INS. CO. v. NORTON.
• Court: Texas Supreme Court

5 S.W.2d 767

SOUTHLAND LIFE INS. CO. v. NORTON.

(No. 1094-4998.)

Commission of Appeals of Texas, Section A.

May 2, 1928.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Margaret S. Nickles against the Southland Life Insurance Company, wherein Court Norton, executor, was substituted as plaintiff after her death. Judgment for plaintiff was affirmed by the Court of Civil Appeals (297 S. W. 1083), and defendant brings error. Reversed and remanded to Court of Civil Appeals.

Seay, Seay, Malone & Lipscomb, of Dallas, and Hunt, Teagle & Moseley, of Houston, for plaintiff in error.

Gill, Jones & Tyler and McFarlane & Dillard, all of Houston, for defendant in error.

CRITZ, J.

The opinion rendered by the Court of Civil Appeals in this cause is reported in 297 S. W. 1083. The opinion of that court fully states the issues involved, and it is not necessary to repeat them here. The suit, however, was originally filed in the district court on an insurance policy of the face value of $10,000. Trial in the district court resulted in a judgment against the insurance company for the face of the policy, plus 12 per cent. statutory penalty and $5,000 attorney fees. This judgment was affirmed by the Court of Civil Appeals.

By its second assignment of error, the insurance company complains of the action of the Court of Civil Appeals in refusing to find that the allowance by the jury of an attorney fee of $5,000 was so grossly excessive as to demand that the court require a substantial remittitur as to said attorney fee.

The Court of Civil Appeals, in passing upon the matter of attorney's fees, holds as follows:

"We cannot hold upon the evidence in the record that the amount found by the jury for attorney's fees was unreasonable. The only evidence upon this issue was the testimony of Mr. Tyler and Mr. Battaile, both of whom are experienced and prominent attorneys, and qualified to give an opinion upon the reasonableness of appellee's claim for $5,000 attorney's fees. Mr. Tyler, after stating the time and labor required in preparing the case for trial and in trying it in the district court, and the time, labor, and expense that would be required in briefing and arguing the case in the Court of Civil Appeals and the Supreme Court, its appeal being a reasonable certainty, testified that in his opinion a reasonable attorney's fee would be $5,000. Mr. Battaile, who testified for defendant, stated that he thought $500 would be reasonable compensation for the 2 days' time in which plaintiff's attorneys were engaged in trying the case in the district court. He further stated that he was confining his estimate of reasonable attorney's fees to the trial in the district court. He was not asked and gave no opinion upon the question of what would be a reasonable compensation for the entire services of plaintiff's attorneys, including the services that would be required of them in the appellate court. Upon this state of the evidence, we cannot say that the finding of the jury was not supported by sufficient evidence, and we are therefore not authorized to disturb their verdict." (Italics ours.)

We construe the holding of the Court of Civil Appeals to be to the effect that, as to matter of attorney's fees, they are bound by the testimony quoted by them, and that they are without authority, under the law, to disturb the verdict of the jury and judgment of the trial court as to the amount of attorney's fees. In so holding, the Court of Civil Appeals was in error.

Article 4736, Revised Civil Statutes of Texas 1925, which is the statute authorizing the recovery of attorney fees in cases of this character, provides as follows:

"In all cases where a...