Farmers & Merchants’ Ins. Co. v. Dobney, 189 U.S. 301 (1903)

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Farmers and Merchants’ Insurance Company v. Dobney

No. 189

Submitted March 9, 1903
Decided April 6, 1903
189 U.S. 301

ERROR TO THE SUPREME COURT

OF THE STATE OF NEBRASKA

Syllabus

Where the allowance of an attorney’s fee under the provisions of a state statute is the basis of the federal right asserted, and it appears that one of the assignments of error relied upon before, and considered and expressly decided by, the highest court of the state was that the statute was unconstitutional and void and in conflict with the Fourteenth Amendment for the want of mutuality, and deprived the plaintiff in error of the equal protection of the law, the motion to dismiss will be denied.

Sections 43, 44, 45 of chapter 48 of the laws of Nebraska of 1899, by which the court, upon rendering judgment for a total loss sued for against an insurance company upon any policy of insurance against loss on real property by fire, tornado, or lightning shall allow the plaintiff a reasonable attorney’s fee to be taxed as costs, is not repugnant to the equality clause of the Fourteenth Amendment either because it arbitrarily subjects insurance companies to a liability for such fees when other defendants in other cases are not subjected to such burden or because the fee is to be imposed on the insurance companies, but not on the insured, when the

suit is successfully defended, or because the statute arbitrarily distinguishes between different classes of policies allowing the fee in certain cases and not in others.

The case is stated in the opinion of the Court.