159 P. 1150 | Or. | 1917
Lead Opinion
Opinion
“In all actions or proceedings in any court in this state in which the State of Oregon is a party, or interested therein, it shall not be required to advance any costs in any such action or proceeding; and that the*509 state shall not be required to furnish any bond or undertaking upon appeal or otherwise in any such action or proceeding. ’ ’
The State of Oregon is interested in the orders made by its commissions, and for that reason no undertaking on appeal was necessary in this case.
The motion is denied.
Motion to Dismiss Denied.
Opinion on the Merits
Beversed. and remanded June 12, 1917.
On the Merits.
(165 Pae. 576.)
In Banc. Statement by Mr. Justice Benson.
"While working as a carpenter upon a building in Portland plaintiff fell, striking upon his head in such a manner as to produce a partial facial paralysis. The employer and employee had both voluntarily accepted and were acting under the provisions of chapter 112, Laws 1913, commonly known as the “Workmen’s Compensation Act.” The plaintiff in pursuance thereof filed a claim for compensation for the injury above mentioned. After an informal investigation, the commission disallowed the claim upon the ground that the injury existed prior to the accident described. The claimant then appealed to the Circuit Court for Multnomah County where, after a hearing, a judgment was entered in favor of plaintiff from which the commission appeals.
Submitted on briefs under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi).
Beversed and Remanded.
For respondent there was a brief over the names of Mr. James U, McMenamin and Mr. Eugene Bland.
delivered the opinion of the court.
“Upon the hearing of such an appeal the court in its discretion may submit to a jury any question of fact involved in such an appeal. The proceedings in every such appeal shall be informal and summary, but full opportunity to be heard shall be had before judgment is pronounced.”
We come then to a consideration of the action of the court in treating the appeal as an original action for damages and giving judgment accordingly. After making findings of fact, the court also filed conclusions of law among which are the following:
“That for the injuries resulting from the fall referred to in Findings VIII the plaintiff is entitled to damages in the full legal sense of that term to the amount of $366.33 to be paid out of the fund created under the provisions of said workmen’s compensation act.
“That in deciding what amount should be awarded to plaintiff, the court is not limited to compensation as provided by the statute creating the State Industrial Accident Commission, Laws 1913, chapter 112; but acts as a jury, and may take into consideration all the elements of damage that a jury might consider.
“That upon the hearing of the appeal herein the court was entitled to hear and consider such testimony only as would have been competent, relevant and material had the case been an action at law to recover damages for a personal injury.
‘ ‘ That in fixing the amount to be allowed to plaintiff for his injuries, the court is not limited by any of the schedules contained in said act, nor by any provision for monthly payments therein contained, nor by any of the methods provided by said act for computing compensation.
“That in making an allowance for surgical and medical services in such cases as this, the court is not*512 limited to the surgical scale established by the defendant commission under section 23 of said workmen’s compensation act.”
These conclusions were followed by a judgment for the claimant in the sum of $366.33 and the additional sum of $75 as physician’s fees. We are entirely at a loss to determine the theory or authority upon which the court based such a view of the law. There is nothing in the statute itself to justify such a contention and our attention has not been called to any authority which might sustain it. Its effect would be to repeal the compensation act by the simple process of appeal. Under the provisions of the statute, an appeal from a decision of the commission does not give the appellate tribunal any new cause of action, or any different law upon which to base its judgment. The judgment is therefore clearly erroneous.
“That the result of such striking of plaintiff’s head as set out in Findings VIII was partial facial paralysis, so that plaintiff for a long time could not control the muscles of the left side of his face, and the control of the left eye was diminished. Such partial paralysis had largely disappeared at the time of the trial and will probably entirely pass away within a few months. During the continuance of such partial paralysis the plaintiff regularly continued at work ás a carpenter on said building until it was completed, without diminution of wages. That plaintiff’s face was not at all paralyzed prior to said accident.
“That at the time of the accident plaintiff was working as a carpenter, but did not habitually earn his living solely at that trade; nor was he able to find carpenter work during the entire period of his partial*513 facial paralysis; that during part of the period of plaintiff’s disablement he worked as an itinerant vendor and canvasser.
“That said condition of partial facial paralysis to a certain extent .but not entirely disabled plaintiff for the performance of the work of a carpenter for a period of several months; and entirely disabled him for a period of viz: one year as an itinerant vendor and canvasser.”