66-233. Action for damages by fire; attorney fee. In all actions commenced under K.S.A. 66-232 and 66-233 and amendments thereto in which judgment is rendered against any railroad company for damages by fire caused by the operating of such railroad, if it appears from the evidence that such company has refused without just cause or excuse to pay the full amount of such damages, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs. When a tender is made by such railroad company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.
History: L. 1885, ch. 155, § 2; R.S. 1923, 66-233; L. 1994, ch. 136, § 1; July 1.
Law Review and Bar Journal References:
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 538, 562 (1979).
CASE ANNOTATIONS
1. Evidence concerning reasonable attorney's fees; finding of jury; judgment. A. T. & S. F. Rld. Co. v. Huitt, 1 Kan. App. 788, 41 P. 1051.
2. Party recovering against company entitled to reasonable attorney's fees. St. L. & S. F. Rly. Co. v. Hoover, 3 Kan. App. 577, 43 P. 854.
3. Section does not violate fourteenth amendment to federal constitution. Clark v. Ellithorpe, 7 Kan. App. 337, 51 P. 940.
4. Necessary to demand attorney's fee in petition and submit question. Ft. S. W. & W. Rld. Co. v. Karracker, 46 Kan. 511, 519, 26 P. 1027; Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 28 P. 612.
5. Section held constitutional and valid. Railroad Co. v. Matthews, 58 Kan. 447, 49 P. 602. Affirmed: Atchison, Topeka & Santa Fe R. Co. v. Matthews, 174 U.S. 96, 19 S. Ct. 609, 43 L.Ed. 909.
6. Section cited in construing insurance statute. Insurance Co. v. Corbett, 69 Kan. 564, 571, 77 P. 108. Modified: Insurance Co. v. Corbett, 81 Kan. 209, 105 P. 7.
7. Reasonable attorney's fee is question of fact. Wheat Growers Ass'n v. Rowan, 125 Kan. 657, 658, 266 P. 104.
8. Discussed; justice court has jurisdiction to award attorney's fee as statutory penalty. Hinds v. Fine, 162 Kan. 328, 336, 176 P.2d 847.
9. Court may separate issue of liability from attorney's fees and determine fees without jury. Thomas v. Kansas City Southern Rly. Co., 197 Kan. 747, 748, 752, 753, 754, 755, 421 P.2d 51.
10. Applicable where undersheriff was injured while fighting fire caused by the railroad. Daily v. Missouri Pacific Railroad Company, 298 F. Supp. 911, 912, 913.
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