I am unable to concur in all that has been said in the majority opinion concerning the matter *Page 418 of procedure, but I do think the conclusion reached therein — that the circuit court had jurisdiction of the cause — is correct.
I dissent from that part of the opinion holding that the circuit court has no authority to direct payment of attorneys' fees in a lump sum.
Defendant commission contends that the circuit court had no authority to award attorneys' fees in the sum of $192.50, payable in a lump sum. Plaintiff had a contract with his attorneys that, in the event he recovered more compensation on appeal than had been awarded by the commission, they would be paid a reasonable sum to be fixed by the court for services rendered. This contract was entirely on a contingent basis. The reasonableness of the fee is not challenged. The sum fixed is 25 per cent of the additional amount of compensation awarded to plaintiff as a result of the appeal to the circuit court. The plaintiff is not here complaining but is, indeed, seeking to sustain the judgment awarding compensation to his attorneys. Apparently he considers his attorneys worthy of their hire.
The commission awarded plaintiff compensation on the basis of 48.4 degrees disability whereas, on appeal, the jury fixed his disability at 79.2 degrees. Under § 102-1760 O.C.L.A., the injured workman receives $25 for each degree of disability. Hence the compensation awarded plaintiff by the commission amounts to the sum of $1,210 whereas, in the circuit court, he obtained an additional award of $770. Compensation for permanent partial disability is, under the statute (§ 102-1760 O.C.L.A.), payable at the rate of $35 per month where claimant is not married and has no dependents under 18 years of age. However, in cases of permanent partial disability, the commission *Page 419 may, in its discretion, pay to the injured workman in a lump sum an amount "not exceeding one-half of the present value of the unpaid award * * * and thereupon all subsequent monthly installments shall be reduced proportionately." (§ 102-1766 O.C.L.A.).
If the attorneys' fees in the instant case are not paid in a lump sum, the payment thereof will, after the expiration of the 34.5 monthly instalments, be made in the sum of $8.75 each month until the fee of $192.50 has been paid. In other words, after plaintiff has been paid $35.00 per month for 34.5 months, as awarded by the commission, the attorneys will then receive 25 per cent of each monthly instalment for a period of 22 months. As a result of the appeal, the monthly instalments were extended 22 months, but the amount paid to the injured workman each month remains the same.
When a claim is allowed, the commission is required to set aside in a segregated fund an amount required to equal at four per cent per annum the present worth of the monthly instalments payable on account of such injury (§ 102-1748 O.C.L.A.). The attorney fees are paid from this segregated fund and it is immaterial to the claimant whether they are paid in a lump sum or by monthly instalments. The fee is deducted in a fixed amount each month from the claimant's compensation regardless of the method of payment. Neither do we think it is detrimental to the fund itself to pay attorney fees in a lump sum. In fact, under the present economic conditions, the fund is benefited by such payment as the segregated fund does not earn four per cent interest.
It is conceded by defendant that it has the authority in certain cases to award, in the exercise of its discretion, a lump sum payment of attorney fees, but it *Page 420 is contended that the circuit court on appeal has no authority to do so. As a matter of practice, the commission has, in the course of years, in numerous cases, followed such method of payment to attorneys, whether any instalment payments were due and owing to claimant or not.
In my opinion, the circuit court on appeal has the discretion, as does the State Industrial Accident Commission, to order payment of attorney fees in a lump sum in all cases where the statute authorizes commutation of payments by the commission. The authority of the circuit court to do so is derived from § 102-1775 O.C.L.A., as read in the light of § 102-1766 providing for commutation of payments by the commission. Section 102-1775 provides as follows:
"No claim for legal services or for any other services rendered before the commission in respect to any claim or reward for compensation, to or on account of any person, shall be valid unless approved by the commission, or if proceedings on appeal from the order of the commission in respect to such claim or award are had before any court, unless approved by such court. * * * Any claim so approved shall, in the manner and to extentfixed by the commission or such court, be a lien upon suchcompensation." (Italics ours.)
When the circuit court fixes the amount of attorney fees and remands the cause with directions that it be paid in a lump sum, the commission, under the authority vested in it by § 102-1766 O.C.L.A., reduces the subsequent monthly payments proportionately until the fees are paid. It is argued — but not by counsel — that the court has no authority to so direct payment of attorney fees until unpaid and accumulated instalments equal such fees. Such a construction of § 102-1775 *Page 421 O.C.L.A. requires that the italicized sentence above be read: "`Any claim so approved shall, in the manner and to extent fixed by the commission or such court, be a lien upon such compensation'; provided the unpaid instalments due claimantequal the amount of such fees." Such restriction upon the court to fix the manner and extent of fees cannot properly be read into the act. We think the legislature must have intended to authorize the court in its discretion to award lump sum attorney fees regardless of accrued instalments. Otherwise, what reason could it have had for vesting the court with power to determine the "manner" or method of payment? The court certainly should not adopt a construction which would nullify the provision of the statute giving to the attorneys a lien upon the fund for legal services as approved by the court or commission.
It is also contended in substance, but not by the commission, that the payment of attorney fees is not proper where the accrued instalments do not equal the amount of the fees, as the injured workman might die or recover — in which event he would not have "earned" the sum thus expended. If plaintiff herein had died before payment in full had been made, the award would not, under § 102-1761 O.C.L.A., be terminated, but payments would continue and be "made to the person or persons who would have been entitled to receive death benefits if the injury causing such disability had been fatal." Of course, it is possible that plaintiff's condition will improve and that the commission by reason thereof will diminish the award, but such contingency is highly improbable.
In Wim v. Hercules Contracting Co., 235 Mo. App. 1,123 S.W.2d 225, argument of a similar nature was made in a case involving payment of the attorney fees *Page 422 by the commission in a lump sum for services in securing an award for a widow whose husband had been killed while working for an employer covered by the workmen's compensation law of that state. The insurance carrier and the employer contended:
"* * * that in commuting the percentage of the future instalments of compensation apportioned to the widow's attorneys as their fee, the commission rendered absolute a liability of the employer and insurer, which, under the terms of the act, was made conditional and contingent upon the continuance of the widow's life and widowhood and might therefore have never accrued as an actual liability on the part of the employer and insurer."
The court answered:
"There can be no denying the truth of such a possibility, and the only complete answer to the point is to say that to the extent that the act invests the commission with authority to commute awards of compensation, it not only does so without regard to whether the award is made to the employee himself or, as in this case, to a dependent, but also fails to require the commission in making such commutation to take precautionary measures against any of the contingencies (such as change for the better in the employee's own condition, or the death or remarriage of the widow) which might serve to affect the liability of the employer and insurer for the payment of future instalments of compensation."
It is also noteworthy that the lump sum award of attorney fees was sustained although accrued instalments did not equal the amount of the fees.
In construing § 102-1775 O.C.L.A., this court in Carr v. StateIndustrial Accident Commission, 153 Or. 517, 57 P.2d 1278, said:
"If the award made by the commission is not satisfactory to the injured workman, he may appeal from *Page 423 its decision to the circuit court where the cause can be tried to a jury on the question as to whether the workman is entitled to any compensation and to what extent. If the workman receives an award from the circuit court, that court can then fix the extent and manner of payment for such services. The power of the court and the commission are coextensive in this regard. * * *
"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 partialmonthly instalments. * * *
"In causes arising under the law as amended by the act of 1935, we are of the opinion that the court or the commission has the authority to fix the manner and extent of the payment of attorney's fees in a proper case, but can not fix it in a different manner or to a greater extent than the statute provides the workman shall be paid." (Italics ours.)
The Carr case is squarely in point as the commission appealed from an order of the circuit court directing attorney's fees to be paid in a single cash payment. There was no accumulation of unpaid instalments sufficient to cover the amount of the attorney's fees, yet the lump sum payment was sustained. There is no good reason for overruling it.
One of the questions in the recent case of Cox v. StateIndustrial Accident Commission, decided February 10, 1942,121 P.2d 919, concerned the authority of the circuit court to order payment of attorney's fees in a lump sum. It was held discretionary with the court and the award was affirmed. The only difference between that case and the one under consideration *Page 424 is that sufficient instalments had accumulated to cover the amount of the attorney's fees as fixed by the court. The predominant thought in the opinion, however, was that the court had the discretion to determine the manner and method of payment. The Carr case was quoted with approval on such question. Referring to § 102-1775 O.C.L.A., the court, speaking through Justice ROSSMAN, said:
"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. * * *
"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."
There has been no abuse of discretion in the instant case. The attorneys have earned their fee and should be paid before they are too old to enjoy the fruits of their victory. *Page 425