*1 393 7; 16; Argued January February affirmed motion for allowance 30; attorney’s attorney’s fee denied March further motion on 11, May fee denied v. STATE DAVIS INDUSTRIAL ACCIDENT
COMMISSION (2d) (64 (2d) 118) (2d) P. 68 P. 66 P. *2 H. B. Assistant General Qriggs, Attorney (I.
Victor General, on the Winkle, Attorney brief), ap- Van pellant. Portland Schnei- McQuirh, (McGuirk &
Walter Portland, on the brief), respondent. der, presented issue ROSSMAN, J. The sole appeal Norman deceased, сoncerns status of injury, at the his fatal Davis, Edward time of October Respondent, her widow, contends that 19, 1934. employee time was an death, at the of his husband, partnership appellant, Bros. known as Buck The that, refer as the insists defendant, which we shall *3 worldng although for Buck the Bros., the deceased was page chapter provisions Laws, 113, 1933 Sеssion of that in the contem- demand a conclusion 116, 2, section working plation enactment the deceased of that was 2 is as follows: himself. Section ‘employer,’ in shall act, “The used this be term any person, corporation, firm or includ- taken to mean ing executor or who administrator, trustee, receiver, right the direct and shall cоntract for and secure any person, and of the term ‘work- control the services any person, female, to mean male or man’ shall taken be engage sub- services, to furnish his or her who shall ject employer; pro- of control to the direction or only, purposes the of this act when vided, together associating themselves under workmen, either agreement partnership as enter into individuals, a or per- principal purpose of which is the a formance contract, particular piece work, labor on a of the performed themselves or with the be such work to employed by them, all other workmen assistance of employes pеrsons such workmen shall deemed having independent such and done, work contrac- person independent tors. No shall be con- deemed system employment merely tractor when the a fixing wages performs method of and the workman employer’s equipment, work either with the tools or appliances or under direction.” his The evidеnce is free from contradiction and dis following: injury, closes the At the time of his fatal years October deceased, who old, was 26 buying was an interest in a sawmill which he and his operated partners father under firm name of Apparently, Davis & Son. mill was a small outfit young sawyer. According Davis worked in a it as jobs to his father, son “took odd mill when the was * * * shut dоwn. He worked for three Simmons, ’’ or times, four and he worked for Buck twice. In the vicinity the mill was stand of timber owned one Butler. Davis & Son had a contract with Butler which They enabled them to cut this timber. also had a contract composed with Buck Bros., which was Bill and Tom whereby per Buck, Bucks, consideration of $2.80 thousand bound feet, themselves to fell the trees, trim logs transport logs them into saw mill. to the required contract The the Bucks to furnish the neces sary equipment crew men and all of the needed for undertaking. performance Besides the two only gave one of Bucks, whom his full time task, to this employed the firm men crew of six and used a tractor, horses, cables, axes, two teams of shovels, in ex etc., ecuting gave this contract. The contract Davis & Son *4 employees, equipment, no control over Buck Bros.’ Bros, liberty any Buck at methods, etc. were to select they employees desired choose methods which Bros, they preferred. Buck had no interest the mill. right compensation logs Their to accrued when sound рulled logs reached the mill. The tractor from the place they leading where had been bucked to the course they to the mill from whence were moved the teams remainder the distance. By the middle of October, 1934,Buck who had Bros., worked this contract for six about weeks, were delivering supply logs an insufficient mill, to the suspend with the result that the mill forced was its - operations. manager Bill Buck, who was the operations, Virgil oper- believed that one Ashoff, who incapable ated the tractor, was and that he re- was sponsible unsatisfactory Young for the conditions. Davis was familiar with tractors and was idle due to sought urged Bill shutdown. Buck now him out and charge him to assume of the trаctor. Davis demurred displace because he did not like to neverthe- Ashoff; accepted less, as result Buck’s insistance, he employment. arrangement The terms which the two men effected are not disclosed the evidence testify, because Buck did not but two "witnesses who part overheard a of the conversation swore that Buck operate hired Davis the tractor and at the same time employment. promptly terminated Ashoff’s Davis went to work. One and one-half hours later, while he operating was the tractor, he met with the fatal ac- cident. reviewing are facts.
The above Without “independent numerous definitions of the terms con- readily tractоr” and “master and servant” which are express apart available, that, we our belief from the Bros, above it is clear that Buck statute, bore to Davis relationship independent & Son the contractors. But the defendant insists that the above statute demands
398 Bros, relationship
a conclusion that the of Buck Davis & Son was that of servant to master, and that young worldng therefore Davis was for himself when he assumed control of the tractor. Since he had not privileges by availed himself of the afforded page chapter whereby Session Laws, 113, section employer may compensation obtain the act under injury, in the event of his the defendant that insists compensation. Davis’s widow not is entitled to quoted It will be observed that the enactment above commonly accepted still retains the definition of the “employer”, “independent terms “workman” although purposes “For contractor”, it adds: the only, associating this act when either workmen, them- together partnership agreement selves under a or principal purpose individuals, enter into a contrаct, on,a performance particular of the which is labor piece performed by such work work themselves by employed or with assistance of other workmen employees all such workmen shall be deemed them, persons having independent such done and not work significant language It contractors.” that this is fol- by person a clause states that a lowed which shall not independent be deemed an contractor if his contract nothing fixing than “a constitutes more method of wages.” legislature The defendant concedes that the passed this act to make clear the fact that station men highway are construction workmen within engaged compеnsation contemplation, act. It is obvious arrangement effected between a contractor merely determining a means of men is his station wages. The contractor and the station men latter’s pursuit, highway engaged same that is, in the con- are Davis & Son were present instance in the struction, but engaged pursuit followed as that in the same deceased, father of Davis, Buck Bros. Hiram S. “Absolutely very emphatically to the no” answered operations inquiry, con- and the “The mill defendant’s Bros, operation?” logging ducted Buck were all one upon suggestion inquiry based To the next which was *6 by logs brought using in Buck mill the that the was two different crews.” said, “Yes, the father but Bros., ‘ impossible say prеsent to that ‘the In instance it is the Bros, principal purpose” held Buck of the contract particular performance piece the a was the labor on per- one of the seven men who were of work” because operating forming the contract was the two tractor, handling teams, still another more were while (Bill spent part Buck) of his at time, least, must have operations supervising operations. These be- involving expensive equipment sides the use of the already required tractor, mentioned fuel and oil for the A as feed and care for the horses. station man well yield nothing hard beforehand that his labor will knows computed wage a in terms of the more than amount expects nothing he moves. He on account material which capital he has and in none, because most of invested willing any is toil can other laborer who to instances job get upon basis. Station men are not at a the same they liberty methods, but must do as are to select Bros, a contract Buck held which was But bidden. Manifestly, they loggers. expected only to available they upon profit man the work of each whom to make capital. In employed their invested the event they proved selected to be methods which that they expect per peculiarly could that the $2.80 effective price would reward them aсcord- contract thousand ingly. proceeding express
Without belief further, we that the above enactment was not intended to alter ordinary “independent definitions of the terms except contractor” and “master au- and servant” thorize the courts in the administration of the Work- Compensation regard as a workman men’s Act to wages, though person even the latter who works expressed fixed in a definite sum but is quantity being That we are true, of service rendered. Bros, independent Buck con- satisfied that were tractors. provision know of no of the law which ren
We although impossible young partner Davis, dered it accept temporarily in the firm of Davis em Son,& ploymеnt due with Buck Bros. The mill had shut down emergency, young to an Davis was idle. Bill When urged young replace man to Ashoff Buck so required degree logs mill with the would move to the dispatch, partner, present Hiram senior was Davis, objection. *7 that at time and no believe offered We employee injury young Davis was an of of his fatal Buck Bros. judgment court is affirmed. the circuit
The Kelly Band, JJ., J., Bean, C. and concur. and attorney’s denied March fee for allowance 1937 Motion Attorney’s Fee 279) (66 (2d) P. by plaintiff-re- This a motion
BOSSMAN, J. awarding attorneys, to her spondent an order the sum of Schneider, and $250 McGuirk Messrs. they performed during compensation for the services
401
it is
appeal.
states
The motion
the course of the
(b)
upon (a)
the affi-
case;
in this
the record
based
(c)
Laws,
1933 Session
T. McGuirk;
davit Walter
Supplement)
($
Oregon
Chap.
;
49-1843b,
Code
by
analogous
(d)
handed down
and
“the
decision
Oregon
Denley
In-
in the case of
v.
Automobile
court
946),
Agency,
(47
(2d)
Pac.
and
surance
Section 49-1843 Code 1935 (1933 Chap. 115), provides: Session Laws, legal any “No claim for services or for serv- other respect any ices rendered before the commission in cоmpensation, claim or reward to or on account of any person, approved by shall be valid unless the com- proceedings appeal mission, or if on from the order of respect the commission in to such claim or award are approved had before court, unless court. such attorney agree In event an and the can commission upon the amount of the each fee, forthwith shall submit pre- written statement the services rendered to the siding judge county of the circuit court in the in which judge summary resides, claimant which shall, in payment filing, manner, without the trial or court fees, determine the amount of such fee. Said contro- versy given precedеnce proceedings. shall be over other Any approved claim so shall, the manner ex- tent fixed the commission or such court, be a lien compensation.” such part Denley Oregon
That
v.
Automobile Insur
Company,
(47
(2d)
ance
(2d)
itself, casualty policy insurance.” The section our laws provides: just mentioned any any brought in or action is suit “Whenever any any policy upon insurance state court including benefit policy or cer- whatsoever,
kind or nature by as issued fraternal societies defined amount tificatе * * * plaintiff, in' which in addition to the may shall recover, he shall also allowed and judgment part as of said such sum as the court recover, attorney’s jury may adjudge fees reasonable as to be or provided, is not that settlement action; in said suit or proof the date of loss is six months from made within society; provided company further, or filеd with that if a tender be by in such suit made a defendant recovery plaintiff’s exceed shall not and the or action recoverable shall be then no sum thereof, the amount * *” * attorney’s fees. plaintiff, instituted Davis, the When Gertrude policy present proceeding possessed of insur no she upon in proceeding such an is not based anсe, and statutory liability. upon are We well but strument, Oregon § does Code 46-134, that convinced attorney’s fee in this the allowance an authorize proceeding. Supple Oregon (b), Code
Section 49-1843 attorney’s fee the award of not authorize does ment, compensation paid allowed in addition to to be referring to the at sеntence, last in Its the commission. approved “Any torney’s shall, claim so fee, states: or fixed the commission and to extent manner ’’ compensation. The act, lien such be a court, such agreements merely provides (a) opinion, be in our concerning attorney paid fees to be client tween approved by unless the com are invalid of awards out pend- by judge, in the event the matter is or mission *9 403 ing appeal; (b) upon if the an commis- before a court attorney, approve requested sion fee an refuses ap- may (c) the and an issue; the circuit court proved settle compensation. upon a lien the awarded fee is plaintiff that the motion under We believe the filed § the belief 46-134 authorizes the allow- mistaken compensation ance of to the a fee addition award purpose for the death, her husband’s and not for having size of the Since fee is fee determined. the paid to be out of her is to be allowance, she entitled its is heard before amount determined. After she attorneys agreed upon her have fee, the amount of the they may approval. they it our submit for If cannot agree, 49-1843(b) expeditious § an outlines method for dispute. adjudgment is
The motion denied. J., and Bean, C. and Rand, JJ., concur. Kelly approval attorney’s May Motion for fee denied 1937
Attorney’s Fee
(68 (2d) 118) P. ROSSMAN, This J. is a motion Messrs. Mc- attorneys approval Gruirkand Schneider, at law, for against plaintiff their claim in the sum of $250, compensation performed by for during services them appeal. Accompanying course of the motion April signed by is a plaintiff, letter, dated 3,1937, approving the claim. upon The motion is based chap. p. Session Laws, § 115, 112, codified as 49-1843b, Oregon Supplеment. April Code 1935 In a letter, dated plaintiff signed 13,1937, states that she the letter approval through misunderstanding fully which she explains, attorneys that, since were awarded court, for their in the circuit she fee services $500 asks
deems a further award of excessive. She $250 approval that her deemed In another withdrawn. objec- repeats Aрril her also she letter, 13,1937, dated again manifests tions to the allowance of the fee and disapproval. her attorneys predicated
The motion ap- assumption they have asked that the fee which *10 satisfactory plain- proval client. is their Since accompa- dissatisfaction and has tiff has manifested expression her of the latter with we do reasons, nied rely attorneys upon believe that the statute which approval. authorizes concerning opinion,
In 30,1937, our dated March phase copy forth of the matter, another of this we set rely, attorneys and then stated, statute which agreed attorneys upon the “After she and her have may approval. they amount fee submit it our of the they agree, (b) expedi § an If cannot 49-1843 outlines adjustment dispute.” of the The tious method for inartfully again drawn. We have examined it statute arrived at the conclusion that it confers au and have thority upon approve and the the commission courts to only attorney agreed upon cliеnt fees after have and it amount. We have become convinced that confers authority upon no the commission nor the courts agreement anything in fees, do about the absence of attorney regard client and thereto. If a between attorney dispute arises between and the commis concerning approval sion then the court fee, may adjust dispute parties after the to it have sub statements. mitted follows from the above that the motion
It must denied. Kelly J., Rand, JJ., C. concur.
Bean,