Hagey v. Mass. Bonding Ins. Co. , 169 Or. 132 ( 1942 )

Motion of respondent for attorney's fee allowed July 7, 1942 ON ALLOWANCE OF ATTORNEY'S FEE 127 P.2d 346 Based upon the provisions of § 101-134, O.C.L.A., the plaintiffs move for an order to include in the judgment the sum of $1,000 as an attorney fee for the services of their attorney in this court. The judgment of the circuit court included $1,500 for the services of the plaintiffs' attorney in the circuit court. The appellant, in resisting the motion, says:

"The provision of our Code giving to the successful plaintiff in an action against an insurance company an attorney fee is penal in its nature, and is designed to punish an insurance company for unjustifiably defending an action. Counsel for the appellant does not believe that this court will feel for an instant that it did not have a just and well-founded reason for securing a judicial determination of its liability."

The appellant then directs attention to the fact that the circuit court allowed the aforementioned sum of $1,500 and says that the award "was generous in the extreme."

We share in the view that the appellant could properly believe that it was entitled to a determination by this court of its liability. We are satisfied that it was prompted by no improper motives. But we do not believe that the aforementioned statute is penal in nature. If it must be defined or classified, we would term it compensatory. See Spicer v.Benefit Association of Railway Employees, 142 Or. 574,17 P.2d 1107, 21 P.2d 187, 90 A.L.R. 517; Title Trust Co. v.United States Fidelity Guaranty Co., 138 Or. 467,1 P.2d 1100, 7 P.2d 805. We have no reason for thinking that the circuit court's award of $1,500 was unreasonable in amount. The plaintiffs' pleadings were repeatedly attacked in the circuit court. Marshaling the evidence was no small task.

Considering the large sum involved in this appeal and the nature of the issues presented by the appellant, it is our belief that an award of $1,000 attorney fee for the services performed in this court is reasonable. The motion will, therefore, be sustained.