The seventh assignment of error clearly raises the question whether or not attorney's fees, provided by Section 6220 C.G.L., 4263 R.G.S., to be recoverable upon the rendition of any decree or judgment by any of the courts of this state against insurance companies, must be expressly pleaded in the declaration as a claim upon which recovery is sought or can be recovered in the action without such special pleading, merely by claiming them as an element of damage within the general ad damnum clause of the declaration.
In U.S. Fire Ins. Co. v. Dickerson, 82 Fla. 442, 90 Sou. Rep. 621, Judge ELLIS, speaking for this court in that opinion, has clearly committed us to the doctrine that "the correct practice is to make a claim in the declaration for attorney's fees under the statute." However, in that case, there was no such allegation set forth in the declaration, notwithstanding which, this Court refused to reverse the judgment because the indicated "proper practice" was not followed, and in the late case of The National Benefit Life Ins. Co. v. Brown, 103 Fla. 758, 139 Sou. Rep. 193, this Court, again speaking through Mr. Justice ELLIS on the point, has observed on the point of "proper practice" involved, that "the statute * * * dispenses with the necessity *Page 717 of pleading the liability" for attorney's fees in order to make them recoverable in a common law action in which the plaintiff has recovered judgment.
My personal view is that the claim for attorney's fees ought to be laid in the declaration, and that if not so laid, that no recovery for same should be allowed. However, in view of the last expression of this Court on the subject in the National Benefit Life Ins. Company case, supra, I cannot reach the conclusion that the Circuit Court was in error when he followed what this court had in its latest opinion approved, even though in an earlier opinion it had implied that the proper practice was to the contrary.
My suggestion is that the bar can allay this question in future cases by simply pleading the claim in the declaration, which is certainly "proper" if not "indispensable" practice, and thereby avoid confusion in the law on this point due to the fact that a tremendously overworked Supreme Court cannot always sua sponte recollect everything that it may have said in the past on a particular point and for that reason may be put in the light of bringing about an inconsistency in its own decisions when the attorneys briefing a case fail to cite all past cases on the precise point.