Dumiane v. Fall River Gas Works Co.

These are appeals from the taxation of costs in four cases which were consolidated and tried together in the Superior Court. The parties agreed that there were nineteen such cases, representing members of four different families, all founded on the same alleged act of negligence of the defendant gas company. The witnesses summoned on behalf of the plaintiffs were, each paid witness fees and travel in only one case, although summoned upon a single subpoena to testify in all the cases. No agreement was made affecting their right to receive such fees as they were lawfully entitled to. Only one set of witness fees and taxable disbursements was allowed to the plaintiffs in the consolidated cases, although attorneys’ fees, term fees, and fees for the writ and travel and attendance were allowed in each case. The only question argued is whether the plaintiffs are entitled to witness fees and similar allowances in each of the cases.

The case is covered by the R. L. c. 203, § 9, which is as follows: “ If two or more cases are tried together in the Supreme Judicial Court, in the Superior Court or in a police, district or municipal court, the presiding judge may reduce the witness fees and other costs; but not less than the ordinary witness fees and other costs recoverable in one of the cases which are so tried together shall be allowed.” The order appealed from in these cases was made by the judge, and it was in accordance with the usual practice. If otherwise the plaintiffs would have been entitled to witness fees in each case, this order must be treated as a reduction of these fees under the statute. The plaintiffs were all represented by the same counsel, and there *598was no occasion for them, or either of them, to make any payment, or to incur any liability for witnesses, if they did incur any liability, which we do not intimate, beyond that necessary to procure the attendance of the witnesses at the single trial in which all the cases were heard together. The statute was intended to apply to such cases, and it has been construed Eberally by this court. Green v. Sklar, 188 Mass. 363.

We do not intimate that, upon proof of the facts which appear on this record, the clerk could not properly disallow, in his original taxation, the fees certified to by the witnesses, beyond those allowable in a single case.

Order of taxation affirmed.