ARK.] BRONX FIRE INS. CO . V. COOPER. 93- BRONX FIRE.INSURANCE COMPANY V. COOPER. 4-2912. Opinion delivered.March . 27, 1933. 1. INSURANCE—ATTORNEYS: FEE.—Where insured recovered the amount sued for under a fire insurance policy less a set-off which was not contested, he was entitled to attorneys' fees, as against • the contention that he failed to recover the amount sued for.
94 BRONX-FIRE INS. CO . N. COOPER. [187 2. COSTS—ALLOVVANM—Where the' court gave judgment for: insured for the amount sued for; reserving the question of attorneys' fees, a subsequent motion for allowance thereof was properly 'treated as' a motion to" retax costs. Appeal from Sevier Circnit Court; A. P. Steel, Judge; affirmed. - . STATEENT BY THE COVRT. The only question involved in this appeal is the correctness of the order of allowance by the court of attorney fees and penalty in a judgment upon an insurance "policy for the amount sued for. - The suit was brought for recoverY . of .$2,882.75 loss on the policy . issued by the appellant company. The answer denied liability and pleaded a set-off of two items,. the costs in Federal court of a suit brought there and dis.- missed and the balance due on the premium,1;oth amoinit-ing to $116.25. . - After the testimony • had been introduced, the appellant offered in open court to confess judgment 'fOr a certain amOunt which appellee declined to accept unless an attorney's fee was included as costs ; whereupon the Court charged the jury as follows : "Gentlemen of the jury, the defendant in this case has offered tO confess judgment for the amount sued for, less the $160 ($116.25) that they claim is.due for the premium on the policy and the costs in the Federal court, and I am of the opinion . that this is all that they are entitled tO, and I am going to instruct you to find a verdict' for the plaintiff in the sum of $2,882.75." . • The insurance company had pleaded its claim :to a set-off in its answer of the two aniounts. set out above, and no reply had been filed denying ifs right thereto. 'The judgment recites : "At the conclusion of the testimony offered by all of the parties in this case, the defendants in open court offered-to confess . judgment for $2,882.75 and costs in this cause accrued to this date, said sum of $2,882.75 being the amount which plaintiff sued for, less $116.25, which defendants set up in their answer as a set-off or counterclaim against the plaintiffs, and the plaintiffs in open court accepted defendant's offer to confess judgment for said sum of $2,882.75 with costs."
ARK.] BRONX FIRE INS. CO . v. COOPER. 95 After the jury returned the verdict as directed, coun-, sel for appellees asked time to file a motion for allowance of attorneys' fees, and the cOurt gave 10 days to prepare a brief upon the motion with an allowance of 5 days to appellants to answer, it being agreed that the amount of the fee could be fixed upon the.thstimony already heard in the trial without the testimony of experts as to the reasonableness:of the fee; and upon the hearing the fee was fixed at $500 and assessed as part 'of the costs, and the validity, of this ,allowance , and judgment is . challenged here: . • , • V erne McMillen and J. J..DuLaney,,for .appellant: Jones & JoneS, for appellee: -• KIRBYi' J., (after: stating the fad's). APpellant..con tend§ that . the' cdurferred 'in renderink judgment for at-: torneys' fees, etc., in the'case, insi g ing• tHt it'coUld met' do' so because appelleeS failed to recover the 'amount of the claim Sued lot. • • • The court, after' hearing the- testiMony in the case and upon the 'appellants' offer -tO cOnfess . judiment Tor' -the amount sued-for less the anaomit of : the set:off Claithed; instructed the jnry that it was all , appellants were entitled to, and instructed a verdict for appellees in the shni of $2;882.75. The judgment ' recites the offer to -confess judgment and . the amount, and that-said sum of $2,882.75 being the, arnount which plaintiffs, suedjor less $116.25, which defendants:set up in-their , :a a nsw a e r set,off, etC., rendered judgment, for. the ,Said $2,882.75 :with costs.. •.. There Was.no.reply made by appellees to the answer of appellants claiming the:set-off of.$116.25, which. amount was in fact-conceded to be due upon , the set-off; whiChwas but- a cause of action against appellees. , Sections .1205,6, Crawford &Moses! Digest. • , • ..•.' . The claim as sued upon, however, was, foUnd-ito:be correct and appellees entitled :thereto . in . ,the .judgment of the court, which allowed the claim and set-off of appellants, and returned judgment for the amount of the balance due, the difference between the amount sued for which appellees were entitled- to recover and the amount of the set-off allowed appellants oni their claim. In other words, the appellees recovered in their suit- the full
96 BRON-X-FIRE INS; -CO. v. COOPER; 4187- amount • sued for, which •was: reduced by a judgment for appellants on their set-off by the amount of it, judgment being in fact entered for the amount of appellees' loss less what they owed appellants on the claim setoff. The failure of the insurance *company to pay -the amount of the loss within the time specified in the policy after demand subjected it to 'payment of attorney's fees upon the recovery ,under the Obey, and it can make no difference in its liability tO the payment of such penalty and 'costs that it failed to comply with and pay the loss when demanded, -because the policy holder was indebted to the insurance company in a matter that could be set-off 'against the insured's claim of loss under the policy, that furnishing no justification for failure to pay the loss within the time specified in the poliCy, and not relieving against the penalty of, the statute. Neither did this constitute a demand for' a greater sum than appellees were entitled to under the •policy, and the court did not err in granting judgment for the attorneys', fee upon the motion therefor. Life <6 Casualty Co. v. Sanders, 173 Ark. 362, : 292 S. W. 657 ; Pacific Mutual Life Ins. Co. v. Carter, 92- Ark. 378, 123 S. W. 384, 124 S. W. 764; National Life <6 Accident Ins. Co. v. Sher-rod, 155 Ark. 381, '244 S. W. 436 ; Home Life <6 Accident Co. v. Schener, 162 Ark. 600, 258 S. W. 648. It could make no difference that the judgment of the allowance of the • attorney 's fee was made after the judgment wAs rendered on the policy, the matter having been postponed until another day for bearing the motion upon the question. It could be regarded in any event a motion :to retax the costs, and there is no merit in the Objection that the allowance •of the- attorney's fee' was made _at a. time after the rendition of the judgment, the question being reserved until the later date. We find no etrOr in the record,' and the judgment is affirmed..
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