Enneberg v. State Industrial Accident Commission

| Or. | Sep 11, 1917

Lead Opinion

BENSON, J.

Plaintiff moves to dismiss tbe appeal upon three grounds:

(a) That an order denying defendant’s motion to dismiss an appeal in the Circuit Court is not an appeal-able order.

(b) That an appeal cannot be prosecuted unless appellant files in this court a complete transcript of the evidence taken in the trial court.

(c) That defendant has not filed an undertaking on appeal.

1. Considering these in their order, we observe that the notice of appeal reads as follows:

“Please take'notice that the defendant above named hereby appeals from the whole of the certain judgment made and rendered in this action by said court on the 24th day of January, 1917, a copy of which judgment is hereto annexed.”

The judgment is a final one for the recovery of money, and the point raised by plaintiff is not supported by the record.

2. As regards the second ground, we are not aware of any statute compelling an appellant to bring up a transcript of the testimony and our attention is not called to any authority justifying such contention.

,3. Finally, it was settled in Miller v. State Industrial Accident Commission, 84 Or. 507 (159 Pac. 1150), that when the commission appeals, it is not required to file an undertaking.

The motion is therefore denied.

Motion to Dismiss Denied.

Reversed and remanded March 26, 1918.

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Opinion on the Merits

On the Merits.

(171 Pac. 765.)

From Columbia: James A. Eakin, Judge.

Department 1. 0. Enneberg was injured on March 9, 1915, while working for an employer who was subject to the Workmen’s Compensation Act: Chapter 112, Laws 1913. Enneberg filed a claim for compensation with the State Industrial Accident Commission on June 14, 1915. An award of $50 for temporary total disability was made each month by the commission for a period of seven months. The first monthly award was made on April 14, 1915, and the last on October 14, 1915. A blank form, labeled “Final Settlement Voucher,” was sent to the plaintiff by the commission. Apparently Enneberg returned the blank form without signing it,, for under date of November 6, 1915, the commission addressed a letter to him say-

“we are again returning to you our final settlement voucher showing the balance of $50 due you. There is nothing in our findings that would show that you are entitled to any further payments, therefore, if you sign the enclosed voucher and return to us we will be glad to forward to you a warrant for $50, as final settlement, as soon as possible.”

The voucher was signed by Enneberg and returned to the commission, but the latter, under date of November 16, 1915, again sent the instrument to Enneberg so that it could be signed by witnesses. The voucher was signed by two witnesses and finally filed with the commission. The Final Settlement Voucher as signed, witnessed and filed reads as follows:

“FINAL SETTLEMENT VOUCHER.

“October 18, 1915.

Claim No. 4286.

“State of Oregon. Class A.

“To O. Ennenberg, Dr. Firm No. 277.

“ (Postoffice Address) Buxton, Oregon.

“AWARD. Computed on basis of time lost. Seven

months-working days, being compensation under

Chapter 112, Laws 1913, as amended by Chapter 271, Laws 1915, in full settlement of claim, of above claimant for injury occurring on the 9th day of March, 1915, at Buxton, Oregon, as allowed and approved by the findings and order of the State Industrial Accident Commission on record in the commission’s office, $350.00.

“State of Oregon,

County of........ss.

“...........191...

“For and in consideration of the sum of $300.00, heretofore paid to me, and the further sum of $50.00, receipt of which is hereby acknowledged, I, O. Enneberg, the undersigned, do hereby release and discharge the State of Oregon from any and all further liabilities or obligations for or on account of that certain personal injury by accident arising out of and in tbe course of my employment, received by me, and heretofore fully reported and described to the State Industrial Accident Commission in my claim for compensation, made in accordance with the provisions of Chapter 112, Laws 1913, and Chapter 271, Laws 1915.

“(Sign here) 0. Enneberg.

(Write name clearly. Claimants unable to write must make (X) mark.)

“Witnesses to signature:

“Minnie Enneberg.

“Postoffice Address: Veronia.

“Arthur Krum.

“Postoffice Address: Veronia.

“To secure prompt payment of this claim, sign the above blank and forward immediately to the State Industrial Accident Commission, Salem, Oregon.

‘ ‘ This must be signed before warrant for the amount can be drawn. ’ ’

Under date of October 5, 1916, Milo C. King, as attorney for Enneberg, wrote to the commission and on October 11, 1916, the latter addressed a letter to Mr. King saying that Enneberg

“was settled with in full and final voucher received. Under the law his right of appeal has expired and we feel that no injustice can be done by refusing further payment in this case.”

On November 13, 1916, Milo C. King, as attorney for Enneberg, filed a notice of appeal, dated October 31, 1916, with the county clerk of Columbia County stating that the plaintiff appeals to the Circuit Court

“from the decision rendered by the State Industrial Accident Commission on the 11th day of October, 1916, in favor of the defendant in said matter and against said plaintiff.”

The State Industrial Accident Commission moved to dismiss the appeal for the reason that the time allowed for taking an appeal to the Circuit Court had expired before the plaintiff gave notice of appeal. The motion was denied by the trial court. A trial by jury resulted in a verdict for the plaintiff, and the defendant appealed from the consequent judgment.

Beversed With Directions.

For appellant there was a brief over the names of Mr. George M. Brown, Attorney General, and Mr. Joseph A. Benjamin, Assistant Attorney General, with an oral argument by Mr. Benjamin.

For respondent there was a brief and an oral argument by Mr. Milo G. King.

HABBIS, J.

4. A workman may have a decision of the commission reviewed by a proceeding in the nature of an appeal to the Circuit Court; but the statute also provides that

“no such appeal shall be entertained unless notice of appeal shall have been served by mail or personally upon some member of the commission within thirty days following the rendition of the decision appealed from and actual communication thereof to the person affected thereby. ’ ’

In October, 1915, the commission decided to discontinue payments. The letter written by the commission to Enneberg on October 11, 1916, was not a decision; it merely gave the information that final settlement had been made with Enneberg in 1915 and that the right of appeal had expired. The last decision rendered by the commission was made in 1915. The letter of October 11,1916, merely related what had occurred a year before.

The plaintiff takes the position that the final settlement voucher did not constitute notice of the decision of the commission. The letter written by the commission on November 6, 1915, to Enneberg may be laid ont of the ease, although it was of itself actual notice of the decision made by the commission. Turning to the voucher, it will be seen that it speaks of an award of $350 in final settlement of the claim as allowed by the findings and order of the commission on record in its office. Enneberg had already received $300 and the remaining sum of $50 was yet to be paid; and the voucher provides that in consideration of the $300 previously paid and the further sum of $50 to be paid, Enneberg releases and discharges the State of Oregon from all further liability. The voucher told him in plain language that the commission had already paid him $300 and had decided to pay him an additional $50 in full settlement of his' claim for compensation. The voucher is not ambiguous; its language is not deceptive; it is plain and understandable; and actual notice of the decision made by the commission is conveyed to anyone who reads the voucher.

It is not necessary to fix the exact date when Enneberg signed the final settlement voucher but it is sufficient to say that he signed it some time before November 16, 1915. The right to appeal is lost unless initiated within the time prescribed by statute. The plaintiff did not appeal within thirty days following the rendition of the decision of the commission and actual communication thereof, and therefore the Circuit Court was without jurisdiction. It follows that the judgment must be reversed with directions to the Circuit Court to sustain the motion to dismiss the appeal; and it is so ordered.

Reversed With Directions. Rehearing Denied.

McBride, C. J., Benson and Burnett, JJ., concur.