Attorney Fees In Equine Cases

An odd thing happened recently in a horse case.  A plaintiff sought to recover attorney fees for what was only pled as a negligence claim.  The plaintiff's position was that under Chapter 38 of the Texas Civil Practices & Remedies Code there is a provision at Section 38.001(6) that allows recovery of attorney fees for "claims for killed or injured stock."  The plaintiff contends her horse was injured while being boarded at a Texas ranch through the negligence of ranch employees.

Because it is very well settled law in Texas that you cannot recover attorney fees for negligence claims, I had not seen an attempt to get fees through this statute.  When I checked the case law, there was no case that even mentioned 38.001(6), and only one interpreting it's predecessor in this context.

In Hatley v. American Quarter Horse Association, 552 F. 2d 646 (5^th Cir. 1977), that court interpreting the predecessor to Section 38.001(6), Art. 2226, held:

Finally, plaintiff's claim for attorney's fees under Article 2226, Vernon's Ann.Civ.St. is without merit. . . . we do not believe that Naturally High can be considered as “stock killed or injured” within the meaning of the statute.

Id., at 658.  Because the alleged injury to the horse in the Hatley case, “Naturally High,” was economic in nature, this was in all probability for the Court's finding.  But it caused me to start digging, and here is what I have found:

The only cognizable claim for killed or injured stock in Texas arises under Tex. Rev. Civ. Stat., Article 6402, which provides:

Each railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle. If said company fence its road it shall only be liable for injury resulting from a want of ordinary care.

Tex. Rev. Civ. Stat., Article 6402.  Acts 2009,  81^st Leg., ch. 85, Sec. 5.01(a)(1) repeal this Article effective April 1, 2011, and the claim will now be part of the Texas Transportation Code at  § 122.102, and provides:

(a) Subject to Subsection (b), a railroad company is liable to the owner for the value of all stock killed or injured by the company's locomotives and cars operating over the company's railways, regardless of whether the county or subdivision of a county in which the death or injury occurs has, under Subchapter B or D, Chapter 143, Agriculture Code, prohibited certain animals from running at large.

(b) A railroad company that fences its railway is liable only for injury to stock that results from a want of ordinary care.

Texas Transportation Code § 122.102 (VTSA 2009).

A claim for death or injury to stock in Texas has always been grounded in the laws surrounding the operation of railroads.  A form of Tex. Rev. Civ. Stat., Article 6402 was originally approved on February 8, 1860 as an act supplementary to the 1853 regulatory act.  See General Laws, 8th Legislature, Page 60, Chapter 51, 4 Gammel's Laws of Texas p. 1422.  Section 6 of the 1860 act read as follows:

‘Section 6. That each and every Railroad Company in this State, shall be liable to the owner, for the value of all stock killed or injured, by the locomotives and cars of such Railroad Company in running over their respective Railways, which may be recovered by suit before any Court having jurisdiction of the amount. If the Railroad Company fence in their road, they shall only then be liable in cases of injury resulting from the want of ordinary care.’

            Because questions arose concerning the effect that the adoption of Texas stock laws, prohibiting certain animals from running at large, were having in certain counties or subdivisions through which railway lines might run, the Texas Legislature in 1905, enacted, as an amendment to the stock law, Section 20a, which provided for strict liability of railroad companies for stock killed or injured by their locomotives in counties or subdivisions where the stock law had been adopted, but provided that if the railroad company should fence its road, then it should only be held liable in cases of injury for want of ordinary care.  Section 20a made the provisions of Article 4528, R.C.S. 1895 apply even to areas where the stock law had been adopted. Article 6603, R.C.S. 1911, carried forward the same provisions, combining the provisions of Article 4528 and Section 20a previously enacted, and employed substantially the same wording as is used in Article 6402 in the 1925 revision:

‘Art. 6402. Killing stock. Each railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways. Such liability shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle. If said company fence its road it shall only be liable for injury resulting from a want of ordinary care.’

            These laws to protect owners of range roaming stock were accompanied by laws regulating presentment of such claims and for recovery of attorney fees.  Article 2178, Rev. Statutes, approved March 13, 1909, read in part as follows:

‘An Act to Regulate the Presentation and Collection of Claims for Personal Services or for Labor Rendered or for Material Furnished, or for Overcharges in Freight or Express, or for Any Claim for Lost or Damaged Freight, or for Stock Killed or Injured by Any Person or Corporation, against Any Person or Corporation Doing Business in This State, and Providing a Reasonable Amount of Attorney Fees to be Recovered, in Cases Where the Amount of Such Claims Shall Not Exceed Two Hundred ($200) Dollars, and Declaring an Emergency. ‘Section 1. That hereafter any person in this state, having a valid, bona fide claim against any person or corporation doing business in this state, for personal services rendered, or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or employees, may present the same to such person or corporation, or to any duly authorized agent thereof, in any county where suit may be instituted for the same; and if, at the expiration of thirty days after the presentation of such claim, the same has not been paid or satisfied, he may immediately institute suit thereon in the proper court and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such person or corporation in such court, he shall be entitled to recover the amount of such claim and all costs of suit, and in addition thereto a reasonable amount as attorney fees, provided he has an attorney employed in the case, not to exceed twenty ($20) dollars, to be determined by the court or jury trying the case; provided, however, that nothing in this act shall be construed to repeal or in any manner affect any provision of the law now in force giving a remedy to persons having claims of the character mentioned in this act, but the same shall be considered as cumulative of all other remedies given to such a person or persons.‘ Sec. 2. The fact that there is no law now in force in this state providing an effectual remedy for persons having such claims as are mentioned in this act creates an emergency and an imperative public necessity requiring the suspension of the constitutional rule requiring bills to be read on three several days, and this act shall take effect from and after its passage, and it is so enacted.‘ 

Tex. Rev. Civ. Stat., Article 2178.  Article 2178 became Article 2226, the precursor of Section 38.001 of the Texas Civil Practice & Remedies Code.[1]  It appears the law allowing recovery of attorney fees for killed and injured stock came into being separate from the law allowing the underlying claim after federal Constitutional challenges under the Equal Protection Clause struck down Texas laws that targeted railroad companies for strict liability for attorney fees.  See Gulf C. & S.F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666, (1897).

All of the above is a rather boring way for me to conclude that attorney fees should only be recoverable in claims brought under the Texas Transportation Code for injured horses and not in general negligence claims. 

This is an interesting issue, dealing with very old law, but with fantastic implications in veterinary negligence cases as well as everyday matters involving the care of another person's horse.

I've asked some of my equine law peers to weigh in on this issue and will hopefully have more to report, failing which, somebody needs to make a trip to Austin!!

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[1] Under the earlier versions of the statute, before 1977, a party could not recover attorney's fees on a claim for breach of contract unless the contract concerned a listed claim, i.e., personal services rendered, labor done, material furnished, overcharges for freight or express, lost or damaged freight or express, or stock killed or injured and, after the 1953 amendment, suits on sworn accounts. The supreme court limited the suit on sworn accounts provision to suits between persons for the purchase and sale of personal property creating a debtor-creditor relationship. Meaders v. Biskamp, 159 Tex. 79, 82-83, 316 S.W.2d 75, 78 (1958). Claims on “special contracts,” not falling within this definition of sworn account, were not entitled to attorney's fees until the 1977 amendments. See id., 159 Tex. at 83, 316 S.W.2d at 78 (attorney's fees not recoverable under article 2226 for contract to drill oil well); Guay v. Schneider, Bernet & Hickman, Inc., 341 S.W.2d 461, 462 (Tex.Civ.App.-Waco 1960) (attorney's fees not recoverable in suit by stock broker against account holder for amounts owing from margin transaction), writ ref'd n.r.e., 161 Tex. 560, 344 S.W.2d 429 (1961) (per curiam).