Cox v. State Industrial Accident Commission

Proceeding under the workmen's compensation act by Gerald Francis Cox, claimant, opposed by Fred Randall, alleged employer. From a judgment in favor of claimant the State Industrial Accident Commission of the State of Oregon appeals. AFFIRMED. REHEARING DENIED. *Page 510 This is an appeal by the Industrial Accident Commission from a judgment of the circuit court in favor of Gerald Francis Cox, 22 years of age, to whom we shall refer as the plaintiff. He was injured September 13, 1939, while riding as a workman upon a truck which was hauling pulp wood. The injury and its extent are not disputed, nor is it claimed that the plaintiff was not engaged in the performance of his duties at the time of the accident. This appeal presents only two issues: (1) Was Fred Randall the employer of the plaintiff, as claimed by the latter, or was the plaintiff's employer his father, Clarence E. Cox, as claimed by the defendant; (2) was the circuit court authorized to order payment in a lump sum of the attorney's fee of $500. The plaintiff's father was a farmer, but in the summer of 1939 he cut 64.6 cords of pulp wood upon land nine miles from Lebanon. The father had no truck or other means of bringing the wood to the paper mill in Lebanon. The mill, however, was willing to pay a price satisfactory to Cox in the event the wood was delivered to the mill. Fred Randall, 19 years of age, lived with his father upon a farm near the wood and had access to a truck belonging to his father. When Cox inquired of Fred whether he would be willing to haul the wood, Fred replied in the affirmative. His principal occupation was farm work. Cox and Fred, after dickering about the price, agreed that Fred should *Page 511 haul it for $1 a cord. The agreement contemplated that Fred should furnish the truck, the necessary gasoline, oil and other essentials including a binder rope. Before entering into the agreement Fred inquired of Cox whether he would furnish his son (the plaintiff) to help handle the job. The reply was no. Thereupon Fred hired the plaintiff and agreed to pay him 15 cents per cord. The work then commenced. On the second day the accident occurred. While the testimony is scant, it indicates that Fred had done hauling before with this truck. The truck had only the ordinary license required of vehicles of that kind. No effort had been made to comply with any of the public utility commissioner's requirements. The plaintiff's father entered Fred as an employee in a timebook which he intended to submit to the defendant. He did this upon the advice of one of the defendant's auditors. After the plaintiff's injury Fred secured another helper and completed the performance of his undertaking. He then received from Cox a check for $64.06. Fred chose the plaintiff as his helper, and later the substitute, on his own volition; that is, Clarence Cox neither suggested nor required him to hire either. The defendant does not claim that any of the above agreements or arrangements were lacking in good faith or were resorted to for a false purpose. Its brief expressly states: "We do not say that Clarence E. Cox, in entering into an agreement with Fred Randall for the hauling of wood at $1 per cord, was seeking to evade a payroll tax. The evidence was to the contrary * * *." The above is a review of all the evidence. All of the testimony came from the plaintiff's witnesses. The *Page 512 defendant presented no evidence. Each party moved for a directed verdict. The plaintiff's motion was sustained. It is agreed that, since the plaintiff resided at home with his father and since no special application had been made in his behalf, § 102-1733, O.C.L.A., demands an affirmance of the rejection of his claim if he was an employee of his father. The defendant directs attention to § 102-1703, O.C.L.A., which, after assigning to the terms "employer" and "workman" their commonplace meanings, says: "If any person engaged in a business and subject to this act as an employer, in the course of such business shall let a contract the principal purpose of which is the performance of labor, such labor to be performed by the person to whom the contract was let or by such person with the assistance of others, all workmen engaged in the performance of the contract shall be deemed workmen of the person letting the contract, if the person to whom the contract was let was not engaged in a separate business involving the occupation covered by the contract at the time of commencing the performance of the contract." That statute was intended, we believe, to provide a means whereby the commission could give effect to realities by deeming as a workman a person who comes within the commonplace meaning of that term. We are certain that no one believed that that statute would become a means of importing into industrial compensation law the unusual and at times artificial interpretations of the term "labor" often found in decisions dealing with mechanics' liens and the penal bonds exacted of contractors who construct public works. Decisions of that type are cited by the defendant in support of its contentions. We believe that the words *Page 513 of the statute should be given the ordinary meaning which men engaged in practical affairs place upon them. We are satisfied that the above-reviewed evidence is sufficient to sustain the circuit court's finding that Fred Randall had agreed to haul the wood as an independent contractor; in short, that he was not an employee of Clarence E. Cox. We believe it also supports the finding that the plaintiff was an employee of Randall. The part of § 102-1703, O.C.L.A., above quoted, in our opinion, does not demand a contrary conclusion. The contract between Clarence Cox and Randall did not call primarily for the performance of labor, but for the transportation of the wood. The labor was incidental. The use of the truck was what Cox wanted. The assignment of error based upon the award of the attorney's fee does not challenge the reasonableness of the amount, but the direction for its payment in a lump sum. Possibly we need not add that the objection comes from the defendant and not from the plaintiff. The latter, in a writing signed by him before the entry of the order, had approved his attorney's charge and had asked that payment be made in a lump sum. No one claims that the writing was improperly induced. The defendant contends that whether the payment should be made in a single unit or in monthly installments was within its discretion. It offers no other criticism of the order. Section 102-1775, O.C.L.A., provides that charges made by attorneys to injured workmen for legal services in the prosecution of claims against the commission shall be subject to the approval of the commission if the matter is disposed of by that administrative body, *Page 514 or by the court before which the matter was determined if an appeal was taken to the court. This provision is shortly followed by this sentence: "Any claim so approved shall, in the manner and to extent fixed by the commission or such court, be a lien upon such compensation." In Carr v. State Industrial AccidentCommission, 153 Or. 517, 57 P.2d 1278, this court sustained a lump sum award. In so doing, the decision took particular note of the words "manner" and "extent" found in the sentence just quoted. The decision held that the word "manner" conferred the power to determine whether payment should be made in a lump sum, in installments, or by combination of the two methods. Particularly, the decision said: "When the commission fixes the attorney's fee, it fixes its amount (extent) and the method (manner) by which it shall be paid; when it becomes the duty of the court to fix the attorney's fee, the court fixes the amount (extent) and the method (manner) the attorney shall be paid, whether in a lump sum and the amount deducted from the total award segregated, or in partial monthly installments." Lest we be misunderstood, we explain that our use of the term "lump sum" means discharge of the entire obligation by a single payment out of accrued installments, and not an award of the kind authorized by § 102-1766, O.C.L.A. The part of Carr v. StateIndustrial Accident Commission, supra, which bears upon statutes of the kind just cited is immaterial to our present purposes. By virtue of the judgment of the circuit court under attack, a total of $2,020 became payable to the plaintiff. That sum was payable in all events — the death of the plaintiff before payment in full would not terminate *Page 515 the liability: § 102-1761, O.C.L.A. Likewise, since the reasonableness of the attorney's fee is not challenged, its payment must be made; and since it is payable out of funds in the defendant's possession, the defendant must pay it. Therefore, the manner of payment whether in a lump sum or in installments will neither prejudice nor benefit the defendant in any particular. At the time of the entry of the order under attack $540 was payable to the plaintiff in the form of accumulated installments. That sum was more than sufficient to discharge the awarded attorney's fee. Since that time $450 more has become payable. When the attacked judgment was entered, the plaintiff was 22 years of age, was unmarried and living with his parents. His financial condition is not disclosed by the record, but apparently it was such that he preferred that his attorney be paid in full. It is clear that he did not desire credit. We notice that his father's signature also appears upon the petition presented to the court requesting lump sum payment. Likewise, the father attended the trial. Section 102-1775, O.C.L.A., as interpreted in the Carr decision and the writing signed by the plaintiff, authorized the circuit court to enter the order under attack; provided the exercise of sound discretion concerning the manner of payment warranted payment in a lump sum. Had the order under review not been made, the plaintiff would be compelled, against his will, to continue an indebtedness which the award enables him to satisfy and which he evidently is anxious to discharge. Although we have scanned the record with care, we have found nothing which indicates that that order should not have been made. If the record indicated that payment in a lump sum was directed through *Page 516 an abuse of the circuit court's discretion, we would have the right to order that payment be made in some other manner:Dickison v. State Industrial Accident Commission, 165 Or. 306,107 P.2d 104. Recently this court, in a case in which the parties had not expressed their wishes, entered an order requiring the defendant to pay to the attorney upon his fee ($750) one-fourth of the accumulated fund and a percentage of the subsequent monthly payments until the fee had been completely paid. In Dickison v. State Industrial Accident Commission, supra, this court found that the record indicated an abuse of the circuit court's discretion in directing the payment of the attorney's fee ($500) in a lump sum. The beneficiary in that case was a widow who was the mother of six minor children. The industrial accident had cost the life of the workman. Our decision substituted for payment in a lump sum, payment in installments. The duty exacted of courts by § 102-1775, O.C.L.A., that they fix the manner in which the attorney's fee shall be paid contemplates not the promulgation of a universal rule applicable in all cases regardless of the financial circumstances of the beneficiary of the fund, but the exercise of discretion in each individual case. The adage that the laborer is worthy of his hire is as applicable to an attorney who has rendered valuable services as to the man who carries a dinner bucket. In the present instance the plaintiff and his father apparently recognized that the attorneys performed valuable services. They established a fund which at the present time consists of approximately $1,000 cash with a like sum to enter the fund shortly. We know of no reason why the plaintiff's request that his attorney be now paid should be ignored. We, therefore, find that the *Page 517 circuit court did not abuse its powers when it entered the order under attack. The above disposes of all contentions. The judgment of the circuit court is affirmed. BAILEY and RAND, JJ., concur.