Manke v. Nehalem Logging Co.

PER CURIAM. This is a motion by plaintiff-respondent to dismiss the appeal, based principally on the ground that the order appealed from is not an appealable order. The action is to recover damages for death by wrongful act. The State Industrial Accident Commission appeared by the attorney general pursuant to ORS 656.582, and filed an answer in which it was alleged in substance that the plaintiff’s sole remedy was under the Workmen’s Compensation Law. The case having been put at issue on this question, a trial was had which eventuated in the order appealed from. This order, entered April 16, 1956, after finding that the evidence was insufficient to sustain the allegations of the answer filed by the commission, dismissed the answer with prejudice. Notice of appeal was served and filed on June 14, 1956. ORS 656.582 (1) directs the commission to request the attorney general to defend an employer in personal injury litigation where it appears that “the plaintiff’s sole right of recovery” is under the Workmen’s Compensation Law, and subdivision 2 of that section provides : “If the Attorney General files an answer in such litigation alleging the defense that the plaintiff’s sole remedy is under the workmen’s compen [213] sation law, the filing of snch answer shall suspend all further proceedings in such litigation other than the trial of the defense that the plaintiff’s right of recovery is under the workmen’s compensation law, until such defense has been finally determined by the court. An appeal to the Supreme Court from the order or judgment finally disposing of such defense may be taken by either party as in other cases.” As the order appealed from is one “finally disposing of’ ’ the defense interposed by the commission, an appeal therefrom is clearly authorized by the last sentence of the statute quoted. Hence, the argument of the plaintiff that the order is not final because “plaintiff’s action is still pending,” is beside the point. The question is not governed by the general statute authorizing appeals (ORS 19.010, 19.140), and therefore such cases as Durkheimer Inv. Co. v. Zell, 161 Or 434, 90 P2d 213, involving an interpretation of these provisions, are not controlling here. In Jackman v. Jones, 191 Or 356, 229 P2d 963, we held that a judgment in favor of the commission in a proceeding brought pursuant to OES 656.582 was appealable, and in Ashern v. Settergren, 180 Or 287, 176 P2d 645, we recognized, although the question was not directly involved, that the statute authorized an appeal by the commission from an adverse judgment. The statute makes no distinction as between the rights of the plaintiff and of the commission in this regard. Were we to yield to the contention of the respondent that the statute means that an appeal may only be taken by the commission after the case between the immediate parties to the action had been fully tried, we would thereby emasculate the statute, for, in that view, the appeal would then be from a final judgment for the plaintiff on the merits, and that which by the terms of the statute is [214] made a final order for the purpose of appeal would thus be reduced to the status of an intermediate order. The other grounds of the motion, namely, that the notice of appeal was not served and filed within the statutory time, and that it does not contain any description of the order appealed from, are so obviously wanting in merit that they do not call for discussion. The motion to dismiss is denied.