Aldrich, J.
This is an action at law brought by plaintiff, a produce dealer of Omaha, to recover $147.61 as damages to a carload of cheese shipped from Plymouth, Wisconsin, Davis Brothers Cream Company, on June 13, 1914, and consigned to the plaintiff at Omaha.
[655]*655The plaintiff’s place of business at Omaha is at the corner of Twelfth and Jones streets, where it uses the warehouse and cold storage plant of the Fairmont Creamery Company. The defendant railroad company entered into a contract with plaintiff to deliver these goods. The car arrived over the defendant’s lines on the morning of June 17, at 2:30 a. m., and the record discloses that it was examined and found in good condition.
The defendant company recognized this car was to be delivered at the warehouse, and finally caused it to be switched over there. The Union Pacific Railroad tracks alone accommodated the Fairmont Creamery warehouse, but there was a delay in getting this car over to the warehouse, and it was during this delay that the damage complained of was caused. The weather at the time of this shipment was very hot, and the ice getting out of the car left the cheese subject to the hot weather without ice during the three or four days that it lay in the Omaha yards, thus causing the damage complained of. The defendant claims that, when it delivered the ear to the Union Pacific, its liability ceased, and that whatever damage resulted it was not responsible for. The plaintiff insists that the defendant contracted to deliver the car to plaintiff’s warehouse, and that it procured the services of the Union Pacific Railroad Company to so place the car there, and paid for its services. It is claimed that the defendant delivered the car to the Union Pacific Railroad Company according to the usual method and custom employed in delivering shipments to connecting carriers, and the record shows that upon arrival the car was ordered delivered to the Fairmount Creamery Company, and it is also a matter .of record that the car was transferred to the Union Pacific. These in the main are the facts at issue in this case. The plaintiff alleges two grounds for recovery in the issues hereby tendered: “ (1) Negligence of the defendant company in its transportation of the car with knowledge of its perishable contents, and before final delivery of the car to the plain[656]*656tiff. (2) Its acknowledgement of liability upon an inspection of the car, and its agreement to pay the loss when ascertained. ’ ’
The defendant admitted the receipt on June 13, 1914, of the car at Plymouth, Wisconsin, consigned to the plaintiff, and denied all its charges of negligence, and alleged the defendant transported the shipment to Omaha strictly in accordance with its instructions, and claimed further that the car arrived in Omaha on the 17th of June, .1914, at 2:30 a. m., and that the plaintiff was duly notified of the arrival of the car, and that at plaintiff’s special instance and request the defendant delivered the car to the Union Pacific Railroad Company, and had it switched to the warehouse of the Fairmont Creamery Company by the Union Pacific Railroad Company, that the former should notify the latter of all ears to be switched to it for unloading, and that the • Union Pacific Railroad Company did switch this' car to the Fairmont Creamery Company, which plaintiff used for unloading, promptly upon receipt of notice to do so. The case was tried on these issues, and the jury rendered a verdict in favor of the plaintiff for the sum of $181.62.
The plaintiff also requested allowance of an attorney’s fee, and the record discloses that there was allowed the sum of $75 for this purpose. From this situation, or state of facts, the defendant appeals. There are two issues to be determined: (1) Was the defendant negligent or responsible for the delay caused in the delivery, under the Nebraska' statute, of these goods to the plaintiff herein? and (2) is defendant liable for an attorney’s fee?
This was an interstate shipment under the following described bill of lading: “Received * * * at Plymouth, Wisconsin, June 13, 1914, from the Davis Brothers Cheese Company, the property described below in apparent good order, except as noted (contents and condition of contents of packages unknown) * * * which said company agrees to carry to its usual place of delivery at said destination consigned to Marsh & Marsh, destination Omaha, State of Nebraska.”
[657]*657It will be noted from the above that the plaintiff and defendant entered into a contract whereby the defendant was to deliver this car to the nsnal place of delivery at its destination to Marsh & Marsh. It is admitted that the defendant had made many shipments over its lines of railway, and that it was familiar with plaintiff’s warehouse in Omaha, and that this was the place of delivery and the destination of the car; and it also knew that the only way for the ear to reach its destination whs, upon its arrival over its tracks, tc employ a Union Pacific engine to deliver it to Marsh & Marsh’s warehouse. Oh June 16, 1914, at 5:45 p. m., the record shows that plaintiff gave to defendant’s freight house at Omaha an order as follows: “On arrival of D. L. & W. 6249, cheese consigned to Marsh & Marsh, set to Union Pacific for Fairmont Creamery.” Thus it is plain the defendant recognized its obligation and responsibility to deliver the car of cheese to the plaintiff’s place of business, and that the damage that occurred to the cheese occurred after its arrival in the Omaha railway yards; and, as the defendant was under contract to deliver this merchandise to the plaintiff at its place of business, then it must follow that whatever damage occurred to the merchandise resulted through the negligence of the defendant. When, the defendant entered into a contract to deliver this car and its contents to Marsh & Marsh at the usual place of business in Omaha, it also contracted to deliver it at the place where it usually has its merchandise delivered, and the defendant was cognizant of it, and it appears undisputed in the record that they were familiar with the defendant’s location, and to carry out the terms and conditions of their contract they employed the Union Pacific Railroad Company to deliver the alleged damaged cheese to plaintiff’s warehouse, and paid them for the service so rendered. It is undisputed also that the defendant was the initial carrier from a point in Wisconsin to a point at plaintiff’s warehouse in Omaha, on the Union Pacific tracks, and procured the services of the Union [658]*658Pacific company to deliver the car at the Fairmont Creamery Company’s warehouse. It was carrying ont in detail its written Contrapt already entered into with, plaintiff. Then if upon the arrival of the car the cheese therein was in good condition, and upon its receipt at the warehouse, a few days later, it was damaged, and in an unsalable condition, it must follow that whatever damage resulted after the car’s arrival in Omaha the defendant is liable for.
It also appears the defendant examined the condition of this car and agreed to settle for all damages. We have examined the instructions, and it would seem that the defendant has no cause of complaint as to any of them, because they were favorable to the issues of the defendant.
Complaint is also made that the allowance by the court of an attorney’s fee of $75 is wrong, and should not be permitted to stand. The record shows that this was an interstate shipment; that the shipment began in Wisconsin and ended in Omaha.
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Aldrich, J.
This is an action at law brought by plaintiff, a produce dealer of Omaha, to recover $147.61 as damages to a carload of cheese shipped from Plymouth, Wisconsin, Davis Brothers Cream Company, on June 13, 1914, and consigned to the plaintiff at Omaha.
[655]*655The plaintiff’s place of business at Omaha is at the corner of Twelfth and Jones streets, where it uses the warehouse and cold storage plant of the Fairmont Creamery Company. The defendant railroad company entered into a contract with plaintiff to deliver these goods. The car arrived over the defendant’s lines on the morning of June 17, at 2:30 a. m., and the record discloses that it was examined and found in good condition.
The defendant company recognized this car was to be delivered at the warehouse, and finally caused it to be switched over there. The Union Pacific Railroad tracks alone accommodated the Fairmont Creamery warehouse, but there was a delay in getting this car over to the warehouse, and it was during this delay that the damage complained of was caused. The weather at the time of this shipment was very hot, and the ice getting out of the car left the cheese subject to the hot weather without ice during the three or four days that it lay in the Omaha yards, thus causing the damage complained of. The defendant claims that, when it delivered the ear to the Union Pacific, its liability ceased, and that whatever damage resulted it was not responsible for. The plaintiff insists that the defendant contracted to deliver the car to plaintiff’s warehouse, and that it procured the services of the Union Pacific Railroad Company to so place the car there, and paid for its services. It is claimed that the defendant delivered the car to the Union Pacific Railroad Company according to the usual method and custom employed in delivering shipments to connecting carriers, and the record shows that upon arrival the car was ordered delivered to the Fairmount Creamery Company, and it is also a matter .of record that the car was transferred to the Union Pacific. These in the main are the facts at issue in this case. The plaintiff alleges two grounds for recovery in the issues hereby tendered: “ (1) Negligence of the defendant company in its transportation of the car with knowledge of its perishable contents, and before final delivery of the car to the plain[656]*656tiff. (2) Its acknowledgement of liability upon an inspection of the car, and its agreement to pay the loss when ascertained. ’ ’
The defendant admitted the receipt on June 13, 1914, of the car at Plymouth, Wisconsin, consigned to the plaintiff, and denied all its charges of negligence, and alleged the defendant transported the shipment to Omaha strictly in accordance with its instructions, and claimed further that the car arrived in Omaha on the 17th of June, .1914, at 2:30 a. m., and that the plaintiff was duly notified of the arrival of the car, and that at plaintiff’s special instance and request the defendant delivered the car to the Union Pacific Railroad Company, and had it switched to the warehouse of the Fairmont Creamery Company by the Union Pacific Railroad Company, that the former should notify the latter of all ears to be switched to it for unloading, and that the • Union Pacific Railroad Company did switch this' car to the Fairmont Creamery Company, which plaintiff used for unloading, promptly upon receipt of notice to do so. The case was tried on these issues, and the jury rendered a verdict in favor of the plaintiff for the sum of $181.62.
The plaintiff also requested allowance of an attorney’s fee, and the record discloses that there was allowed the sum of $75 for this purpose. From this situation, or state of facts, the defendant appeals. There are two issues to be determined: (1) Was the defendant negligent or responsible for the delay caused in the delivery, under the Nebraska' statute, of these goods to the plaintiff herein? and (2) is defendant liable for an attorney’s fee?
This was an interstate shipment under the following described bill of lading: “Received * * * at Plymouth, Wisconsin, June 13, 1914, from the Davis Brothers Cheese Company, the property described below in apparent good order, except as noted (contents and condition of contents of packages unknown) * * * which said company agrees to carry to its usual place of delivery at said destination consigned to Marsh & Marsh, destination Omaha, State of Nebraska.”
[657]*657It will be noted from the above that the plaintiff and defendant entered into a contract whereby the defendant was to deliver this car to the nsnal place of delivery at its destination to Marsh & Marsh. It is admitted that the defendant had made many shipments over its lines of railway, and that it was familiar with plaintiff’s warehouse in Omaha, and that this was the place of delivery and the destination of the car; and it also knew that the only way for the ear to reach its destination whs, upon its arrival over its tracks, tc employ a Union Pacific engine to deliver it to Marsh & Marsh’s warehouse. Oh June 16, 1914, at 5:45 p. m., the record shows that plaintiff gave to defendant’s freight house at Omaha an order as follows: “On arrival of D. L. & W. 6249, cheese consigned to Marsh & Marsh, set to Union Pacific for Fairmont Creamery.” Thus it is plain the defendant recognized its obligation and responsibility to deliver the car of cheese to the plaintiff’s place of business, and that the damage that occurred to the cheese occurred after its arrival in the Omaha railway yards; and, as the defendant was under contract to deliver this merchandise to the plaintiff at its place of business, then it must follow that whatever damage occurred to the merchandise resulted through the negligence of the defendant. When, the defendant entered into a contract to deliver this car and its contents to Marsh & Marsh at the usual place of business in Omaha, it also contracted to deliver it at the place where it usually has its merchandise delivered, and the defendant was cognizant of it, and it appears undisputed in the record that they were familiar with the defendant’s location, and to carry out the terms and conditions of their contract they employed the Union Pacific Railroad Company to deliver the alleged damaged cheese to plaintiff’s warehouse, and paid them for the service so rendered. It is undisputed also that the defendant was the initial carrier from a point in Wisconsin to a point at plaintiff’s warehouse in Omaha, on the Union Pacific tracks, and procured the services of the Union [658]*658Pacific company to deliver the car at the Fairmont Creamery Company’s warehouse. It was carrying ont in detail its written Contrapt already entered into with, plaintiff. Then if upon the arrival of the car the cheese therein was in good condition, and upon its receipt at the warehouse, a few days later, it was damaged, and in an unsalable condition, it must follow that whatever damage resulted after the car’s arrival in Omaha the defendant is liable for.
It also appears the defendant examined the condition of this car and agreed to settle for all damages. We have examined the instructions, and it would seem that the defendant has no cause of complaint as to any of them, because they were favorable to the issues of the defendant.
Complaint is also made that the allowance by the court of an attorney’s fee of $75 is wrong, and should not be permitted to stand. The record shows that this was an interstate shipment; that the shipment began in Wisconsin and ended in Omaha. We suppose this claim was allowed under section 6063, Rev. St. 1913. The provision of this statute, so far as it applies here, is as follows: “In the event such claim, which shall have been filed as above provided within ninety days from the date of the delivery of the freight in regard to which damages are claimed, is not adjusted and paid within the time herein limited, such common carrier shall be liable for interest thereon at 7 per cent, per annum from the date of filing of such claim, and shall also be liable for a reasonable attorney’s fee to be fixed by the court.” Seven per cent, is the legal rate of interest in this state in the absence of contract. The court named $75 as an attorney’s fee. The amount is not exorbitant or unreasonable, but the serious question is: Can this statute above quoted be made applicable to an interstate shipment?
The statute under consideration provides for the allowance of attorney’s fees in all cases where claims for loss or damage for which a common carrier may be [659]*659liable shall not be adjusted and paid within a fixed period. By this statute no attempt is made to regulate interstate commerce. .Neither is the imposition of attorney’s fees to be considered as a penalty; rather it is to be considered as a part of the costs incurred in the action, although not so denominated in the statute. The allowance is clearly in the nature of costs. It is not a fixed sum to be recovered as a part of the judgment, but its amount is to be fixed by the court. Smith v. Chicago, St. P., M. & O. R. Co., 99 Neb. 719. As was said by Mr. Justice Pitney in Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642: “Manifestly, the purpose is merely to require the defendant to reimburse the plaintiff for a part of his expenses not otherwise recoverable as ‘ costs of suit. ’ So far as it goes, it imposes only compensatory damages upon a defendant who, in the judgment of the legislature, unreasonably delays and resists payment of a just demand. The outlay for an attorney’s fee is a necessary consequence of the litigation, and since it must fall upon one party or the other, it is reasonable to impose it upon the party whose refusal to pay a just claim renders the litigation necessary. The allowance of ordinary costs of suit to the prevailing party rests upon the same principle.” Taking this view of the matter, the case of Charleston & W. C. R. Co. v. Varnville Furniture Co., 237 U. S. 597, cited by appellant, is not applicable.
The judgment of the district court must be
Aeeirmed.
Morrissey, C. J., not sitting.