BURLEY WELDING WORKS, Inc., et al. v. LAWSON, Deputy Commissioner, United States Employees’ Compensation Commission.
No. 10894.
Circuit Court of Appeals, Fifth Circuit.
April 11, 1944.
Rehearing Denied May 15, 1944.
141 F.2d 964
“Clients, not lawyers, are the litigants. Whatever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. * * *”
Canon 19 reads as follows:
“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”
Canon 20 reads as follows:
“Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement.”
Counsel on either side have in this case violated Canon 17. The record also discloses that counsel on one side was a witness in behalf of his client as to matters not merely formal. Counsel on either side have gone outside of the record to show that the facts and issues in this litigation when it was pending on appeal to this court have been the subject of ex parte references and public addresses. After the appeal to this court had been perfected, one of the counsel delivered at least three public addresses graphically if not dramatically portraying his version of the proceedings, and caused one of his addresses to be published in the official publication of the American Water Works Association. Had the appeal been successful, a retrial of the issues by the trial court would have been necessary, and hence, the case was still pending at the time of these addresses and the publication mentioned. We cannot extend our approval to the conduct of counsel on either side, which they have impliedly, if not directly, solicited from us.
There has been called to our attention a motion to tax costs filed by appellee on the day of the argument, which, however, was not presented at the time of the argument. We have therefore given the motion no consideration, but if desirable it may be urged hereafter.
The judgment appealed from is affirmed.
Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Ernest L. Duhaime, Asst. U. S. Atty., of Miami, Fla., for appellee Richard P. Lawson.
Bart A. Riley and A. C. Dressler, both of Miami, Fla., for appellee William Henry Knowles.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
McCORD, Circuit Judge.
Burley Welding Works, Inc., a Florida corporation, and its insurance carrier, Lumbermens Mutual Casualty Company, a corporation, filed a libel against Richard P. Lawson, as Deputy Commissioner of the United States Employees’ Compensation Commission, and against William Henry Knowles, in a cause civil and maritime, under the Longshoremen‘s and Harbor Workers’ Compensation Act,
Being aggrieved at the decree in this case, Burley Welding Works, Inc., and its insurance carrier gave notice of appeal within the three months’ period made and provided therefor, and also made bond for costs, which was approved by the court. We are of opinion and so hold that the approval of the appeal bond was in legal effect an allowance of the appeal. The motion to dismiss the appeal is, therefore, overruled. Crescent Wharf & Warehouse Co. v. Pillsbury, 9 Cir., 93 F.2d 761; Sage v. Central Railroad Co., 96 U.S. 712, 24 L.Ed. 641; Brown v. McConnell, 124 U.S. 489, 491, 8 S.Ct. 559, 31 L.Ed. 495.
William Henry Knowles, while in the employ of the Burley Welding Works, Inc., at Miami, Florida, on the 23rd day of November, 1940, sustained personal injuries while working as a welder on board the vessel “Nirvana” which was afloat upon the Miami River, a navigable water of the United States. His injury resulted in compression fractures of the second, third, and fourth lumbar vertebrae, fracture of the superior ramus of the left pubic bone, fracture of the left fibula at its distal end, and an avulsion fracture of the cuboid bone of the left foot.
Claim for compensation was filed in the case by Knowles, and after hearing, the Deputy Commissioner issued a compensation order on July 29, 1942, in which he found that Knowles was totally disabled from November 25, 1940 to May 4, 1941, and that subsequent to the latter date Knowles’ wage-earning capacity was 82 per cent of such capacity as existed at the time of the injury. The Deputy Com
On August 8, 1942, Burley Welding Works and its insurance carrier applied to the Deputy Commissioner, pursuant to the provisions of
The Deputy Commissioner found, and there was evidence to support his findings, that the earnings of the employee subsequent to March 16, 1942 do not fairly and reasonably represent his wage-earning capacity. The evidence showed that Knowles was favored with light work because of his back condition; that he had to leave one job because he could no longer do the climbing required; that the present high rate of pay received by welders is due solely to the war emergency; that the condition of his back has not changed and gives him trouble; that he could not work all day; that he cannot work the hours he used to work; that a welder is required to get in strenuous positions and that he could not do this because of his condition; that when he did not feel well and got tired before the end of the day he went home, but his employer paid him for full time; that the demand for welders is unusual due to the war; that he was given jobs where he would not have to stoop over and bend; that at the place where he worked he was paid $1.50 per hour with time and one-half for overtime. There was no contention that Knowles had wholly and entirely recovered from the effects of the injury.
Upon the evidence adduced before him the Deputy Commissioner filed the compensation order of July 26, 1943, complained of, in which he denied Welding Works’ application for review, for the reason that “There has been no change in conditions, within the meaning of
Welding Works and its insurance carrier thereafter instituted a libel proceeding in the District Court seeking to have the court review and set aside the compensation order of July 26, 1943. Exceptions to the libel were filed on behalf of the Deputy Commissioner and were sustained by order of the court on October 16, 1943, from which this appeal has been taken.
Question: Do the wages paid to William Henry Knowles subsequent to March 16, 1942 conclusively establish his “wage-earning capacity” and constitute a “change in conditions” within the meaning of
Pertinent Statutes: Longshoremen‘s and Harbor Workers’ Compensation Act of March 4, 1927, 44 Stat. 1424,
The burden was on Burley Welding Works and its insurance carrier to show that there was not sufficient evidence before the Deputy Commissioner to support the compensation order complained of in the bill. Grant v. Mitchell, D.C., 56 F.2d 654.
The findings of fact of the Deputy Commissioner must be presumed to be correct. Anderson v. Hoage, 63 App.D.C. 169, 70 F.2d 773; Luckenbach Steamship Co. v. Norton, 3 Cir., 96 F.2d 764.
It has been uniformly held that the term “change in conditions” in
An employee who has sustained a permanent or temporary partial disability and who returns to work at the same or higher wages nevertheless may be entitled to compensation if he has sustained a decrease in “wage-earning capacity.” Twin Harbor Stevedoring & Tug Co., et al. v. Marshall, 9 Cir., 103 F.2d 513; Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 163, 85 F.2d 420.
We find no reversible error in the record and the judgment is affirmed.
PER CURIAM.
The application for modification of the compensation order under
The motion for a rehearing is denied.
McCORD
CIRCUIT JUDGE