Buffalo Cab Co. v. Williams

191 S.E.2d 317, 126 Ga. App. 522, 1972 Ga. App. LEXIS 1200

• Court: Court of Appeals of Georgia
• Decided: May 11, 1972
• Docket: 46897
• Status: Published

Opinions

Hall, Presiding Judge.

Defendant in an action for property damage appeals from the award of attorney’s fees to the plaintiff.

Defendant’s driver ran into the rear of plaintiff’s automobile while she was stopped at a traffic light. An investigator from the defendant cab company came to the scene and told plaintiff they would fix her car. At the traffic court hearing (the driver entered a plea of guilty of following too close); she was again assured that they would fig: her car. She called the cab company and was told to bring her car in for inspection. She took it in and left it for three days, during which time no one looked at it because they were "too busy.” She then retrieved it and had it repaired at her own expense (and at the lowest estimate). She brought this suit to recover damages, alleging both the cost of repairs and diminution of value. She also alleged loss of hire for the repair period. The defendant answered with a simple denial and a demand for a jury trial. At this point, plaintiff amended her complaint to demand attorney’s fees.

At the trial, defendant- offered no evidence, nor did it attempt to dispute liability for the collision or the amount of damages to the automobile. The defendant’s main effort was directed to opposing the demand for attorney’s fees. The court overruled defendant’s motion for directed verdict on this issue. The jury returned a verdict for the cost of repairs ($345.34) and for attorney’s fees ($160).

The sole ground of defendant’s appeal is the propriety of the award of attorney’s fees. Code § 20-1404 states, "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” The statute itself is venerable, and is a codification of the common law. The heyday of its construction and application seems to have occurred in the years surrounding the turn of the century.

Defendant cites many cases which state broadly that a refusal to pay without suit, regardless of motive, will not authorize the recovery of attorney’s fees under any of the grounds of the statute. See Pferdmenges, Preyer & Co. v. Butler, Stevens & Co., 117 Ga. 400 (43 SE 695); Georgia R. & Bkg. Co. v. Gardner, 118 Ga. 723 (45 SE 600); Traders Ins. Co. v. Mann, 118 Ga. 381 (45 SE 426).

The expansive language used by the court in these cases would seem to rest on the assumption that the controversies were genuine. The cases must also be read in the context of the era—when litigation was a more popular pastime. It was relatively inexpensive, speedy, and a source of local entertainment. The old casebooks are filled with minor disputes of no great legal significance. The only explanation for their appearance in the appellate courts is that the parties took genuine delight in litigiousness. Today it is difficult to take the position that the mere (although human) desire not to part with money, to satisfy a claim against which one has no defense, ought to be protected by a policy "not to require the defendant to pay the expense of obtaining a judgment against himself.” Traders Ins. Co. v. Mann, supra, p. 386. Considering the high cost of litigation, both to the parties and to the State, and the overburdened condition of our courts, the sane policy would be to discourage unwarranted litigation, whether caused by a plaintiff or a defendant.

Long before the cases cited by defendant, Justice Bleckley laid down a rule which is sound today: "The case is one fairly open to controversy in all its branches. The plaintiff commenced by insisting upon too high a standard both of liability and compensation. . . No man is bound to forego litigation at the expense of yielding rights apparently well founded, much less those which prove to be so founded in the end. Where there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.” Tift v. Towns, 63 Ga. 237, 242.

The key to the test is "bona fide controversy.” Where none exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him "unnecessary trouble and expense.” This is in accord with a recent case in which this court upheld a denial of attorney’s fees. Not only was the evidence in dispute, but the status of the underlying law was in doubt until resolved by the court. D. H. Overmyer Co. v. Nelson-Brantley Glass Co., 119 Ga. App. 599 (168 SE2d 176).

The case here is the modern counterpart of Western & A. R. Co. v. Smith. 15 Ga. App. 289 (82 SE 906). The plaintiff’s cow (value $50) was killed by defendant’s train. Twice the railroad made an offer of settlement which the plaintiff accepted willingly. Then the railroad unaccountably decided not to pay but to "fight the case before all the courts before doing so.” As a technique for avoiding the payment of small claims, the "so sue me” ploy is frequently effective. Occasionally, however, the bluff is called by an outraged plaintiff. The lady in Western amended her complaint, alleging that the railroad was acting in that manner to cause her "all possible trouble and expense” and that she should be allowed an additional $10 as expenses of litigation. The Court of Appeals agreed with her.

The lady here just wanted her car fixed. She cooperated fully with defendant’s suggested procedure for reaching a settlement but met with inaction. She has had to engage counsel to bring suit, to prosecute a jury trial and now to defend an appeal. If this court were to follow, unexamined, the sweeping rules of the Pferdmenges type cases, she would also be cast with the costs of the appeal (including a full transcript). We cannot pretend that her rightful victory below would be anything but Pyrrhic; nor can we ignore the effect on all other claims of this nature. Lawyers would have to advise clients that there is no practical way to collect a perfectly valid, technically undisputed claim if the other party simply decides not to pay. It will be very difficult to convince the public that this is the operation of a reasonable system of justice.

The proper application of Code § 20-1404 should reduce the possibility of that result. A defendant without a defense may still gamble on a person’s unwillingness to go to the trouble and expense of a lawsuit; but there will be, as in any true gamble, a price to pay for losing. We do not believe the trial courts will find any difficulty in determining whether a genuine dispute exists—whether of law or fact, on liability or amount of damages, or on any comparable issue. Where none is found, it may authorize the jury to award the expenses of litigation.

We are not unmindful of decisions of both this court and the Supreme Court holding that attorney’s fees are unauthorized where the amount of defendant’s liability as established by the jury was substantially less than the amount sued for. See. Broyles v. Johnson, 103 Ga. App. 102 (118 SE2d 734). These decisions are inapposite for several reasons. First of all these cases are in contract while this case is in tort. Traders Ins. Co. v. Mann, 118 , supra. However, even if we were to apply these contract cases to the present tort case, the fact that the jury rejected the diminished market value and awarded cost of repairs ($55 difference) would not be considered substantial. Further it must be remembered that the defendant in its pleadings denied any liability whatever and at the trial offered no evidence to dispute liability or the amount of damages to the automobile.

Argued February 1, 1972— Decided May 11, 1972— Rehearing denied June 19, 1972 Michael J. Reily, for appellant. John William Brent, E. Lee Redfern, for appellee.

Because the construction of the statute has been unclear, we cannot say this appeal was taken for delay only. Therefore the plaintiff’s motion to assess ten percent additional damages must be denied.

Judgment affirmed.

Deen, Quillian, Clark and Stolz, JJ., concur. Evans, J., concurs specially. Bell, C. J., concurs in the judgment. Eberhardt, P. J., and Pannell, J., dissent.