ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
In this case, the constitutional validity of two statutes of Nebraska is questioned, the first subjecting the initial railroad of two connecting roads, receiving freight, to liability for safe delivery by the other, and the second making every common carrier liable for a reasonable attorney's fee in the court of first instance and on appeal, for colection from it of every claim for damage or loss to property shipped, not adjusted within 60 days, for intrastate shipments.
The Nye Schneider Fowler Company, defendant in error, is a corporation of Nebraska, at Fremont, Nebraska,
engaged in the business of bringing hogs into the State and shipping them to South Omaha for sale in the stockyards there. It brought this suit against the plaintiff in error, a common carrier, to recover damages in the sum of $2,097.21 and $900 attorney's fees, for loss or injury to hogs shipped in 105 intrastate shipments, averring due presentation of such claims and the refusal of the company to pay any amount whatever on them. The jury returned a verdict of $802.27, with interest at 7%, as provided in the statute. On motion, the court fixed the reasonable attorney's fees in the suit at $600, as part of the costs, and judgment for verdict and costs was accordingly entered. By the Supreme Court of the State, to which the defendant company appealed the cause, a remittitur was required and consented to for $209.01 on the amount recovered for loss and damage, and the fee of $600 taxed as costs was reduced to $200, but the Supreme Court taxed the plaintiff in error with an attorney's fee of $100 for services in the Supreme Court and judgment was entered accordingly. The questions made involved separate statutes and we shall take them up in order.
First. Section 6058 of the Revised Statutes of Nebraska, 1913, provides as follows:
"Any railroad company receiving freight for transportation shall be entitled to the same rights and be subject to the same liabilities as common carriers. Whenever two or more railroads are connected together, the company owning either of such roads receiving freight to be transported to any place on the line of either of the roads so connected shall be liable as common carriers for the delivery of such freight, to the consignee of the freight, in the same order in which such freight was shipped."
It is objected that this imposes on one railroad liability for the default of another without providing reimbursement by that other and so deprives the one of its property
without due process of law. But the Supreme Court of Nebraska has declared in this case that, in such a case under the statute, the initial carrier has a right of reimbursement under the general principle of subrogation. This conclusion is sound and is supported by Texas & Pacific Ry. Co. v. Eastin & Knox, 100 Tex. 556, and the general principle involved finds support in Fisher v. Milwaukee Electric Ry. & Light Co., 173 Wis. 57; Arnold v. Green, 116 N.Y. 566, 571; Syracuse Lighting Co. v. Maryland Casualty Co., 226 N.Y. 25, and Holmes v. Balcom, 84 Me. 226. Counsel for the plaintiff in error contend that the legislature has granted no such right of subrogation in this statute, that it is not a right but purely a matter of equity under the circumstances. We can not follow this distinction.We have here a construction of this statute by the Supreme Court of the State, in which that tribunal holds that, under all the circumstances to which this statute can apply, subrogation does exist.The initial carrier is, therefore, certainly protected within the jurisdiction within which the statute operates, and, as no doubt can arise as to the enjoyment of the right, it is immaterial whether it was originally founded on the common law or was developed in the broader justice of equity jurisprudence.
Second. Authority for taxing of attorney's fees as part of the costs in such cases is founded in c. 134, Laws of Nebraska, 1919, amending § 6063, Revised Statutes, 1913, which reads as follows:
"Every claim for loss or damage to property in any manner, or overcharge for freight for which any common carrier in the State of Nebraska may be liable, shall be adjusted and paid by the common carrier delivering such freight at the place of destination within sixty days, in cases of shipment or shipments wholly within the state, and within ninety days ...