Consideration of the briefs and arguments upon rehearing prompts the writer to elaborate upon the facts stated by plaintiff in the office of defendant commission preliminary to the filing of his claim. In the original opinion, it is stated that these facts, if true, would tend strongly to cause plaintiff to urge the commission to permit him to make a deferred filing of his claim.
It is also stated that the report of these facts would incline any reasonable person to permit such deferred filing.
These facts are that plaintiff was injured by a falling limb from a tree. This limb struck plaintiff on the left side of his back.
Mr. Charles Howry testified that, at the time of plaintiff's injury, he was working two or three hundred feet from plaintiff. We quote from Mr. Howry's testimony:
"Q. Did you see the accident?
A. No I didn't actually see it.
Q. Was it called to your attention immediately?
A. The whistle punk was in sight of him; he punked the whistle and topped the rig and went over.
Q. What did you observe as to Mr. Wooldridge's condition at the time you got there?
A. Oh he was laying on the ground; one of the boys has this water jug. He has the wind knocked out of him and he is gasping for breath at the time.
Q. Did you see the situation there with reference to the logs and limbs?
A. Yes. *Page 436
Q. And you heard his testimony on that?
A. Yes.
Q. And would you say that was the situation there?
A. Yes.
Q. Did you observe his back at that time?
A. Well they, I think one of the other chokers took his shirt off. He had a red spot by the shoulder blade where a limb struck him.
Q. On his back?
A. Right below his shoulder blade. Oh I don't know about the size of a baseball, something that way in size I would say."
Mr. Howry also testified that before the accident plaintiff was falling and bucking timber and that such work would be considered a man's sized job, and also that after the accident plaintiff acted like a sick man all the time; that he came back and punked whistle for awhile; that he wasn't able to do much work.
Mr. Earl Morgan testified that he was working in a canyon below the scene of plaintiff's accident; that answering the whistle, he left the canyon and went to plaintiff's assistance. It required Morgan six or seven minutes to reach plaintiff and when he did, plaintiff was still down. Plaintiff was "laying there limp, out". This witness also testified that he knew how it happened, that a man working in the woods would realize how it happened.
This witness also testified that there was a welt, a discolored spot, on plaintiff's back; that plaintiff was not able to walk but he had "two men helping take him out."
This witness also testified that in the fall plaintiff came and started punking whistle. We quote from witness Morgan's testimony: *Page 437
"As a general rule anyone that knows anything about the woods, the whistle punk usually tends coils, changes lines and like that. I didn't figure he ought to be out working and didn't ask him to do that."
Plaintiff testified that on the 25th day of June, 1937, he was bucking trees which were felled, and as he sawed the tree he observed a limb upon it about ten feet long and about three or four inches thick where it was broken off.
He was asked what happened as he sawed that log off, to which he answered:
"Well I concluded at first, so it would not split, all that weight on the end of it, when I bucked it off, — I remember I thought it might roll when I bucked it off and hit a stump and roll back towards me. I went back to the end and got some brush and piled it there. I cut it nearly off, and when I bucked it clear off it dropped and [on] this flat place when [went] on over, like to the left, and hit a stump and when it fell and turned directly toward me. I got myself away from there as fast as I could but I couldn't get quite far enough. * * *"
Plaintiff also testified that the limb struck him on the left side of his back just below the shoulder blade.
He was asked what he experienced and how he felt at the time to which he answered:
"Well, I didn't know very much, as far as that goes. It knocked me completely out for a second, then I heard the whistle punk across — Oh sixty or eighty feet across the draw from me, holler and ask if I was hurt any. Then I couldn't hear him. I couldn't answer him. Then he hollered to the boys and they came over and found me down and helpless. They helped me to get my breath a little bit. I layed there fifteen minutes I expect. They rolled my shirt up to see how bad I was hurt and one of the boys took me to the doctor. I remember they helped me. I walked out with their help." *Page 438
Dr. Hohl of Taft treated plaintiff, found no fractured bones, and thought there was no permanent injury.
It appears from the testimony that plaintiff returned to his work and directed the operations of a cutting crew "and stayed there from then on."
Plaintiff grew weaker and lost his appetite. He quit work on the 12th of August, 1937, and by the first of October, feeling somewhat better, took the job of punking the whistle, which it appears is a light job, at which he worked for 10 or 11 days.
In December, 1937, Dr. Hohl sent plaintiff to a private hospital at Ocean Lake where plaintiff remained for about 10 days. Plaintiff then returned to his home near Monroe. A physician at Monroe examined plaintiff, discovered the pus sac in his back and advised him to go to Eugene and have an X-ray taken and perhaps an operation.
Plaintiff went to a hospital in Eugene and Dr. M.G. Howard performed an operation upon him removing one of his ribs and draining the pus from the sac aforesaid.
These facts, which were rehearsed by plaintiff in the office of the commission when he asked to be permitted to file his claim for compensation, cause the writer to think that the commission was entirely justified in making the deferred filing of plaintiff's claim. It is apparent that the plaintiff was not apprised of the nature of his injury until he received the diagnosis of the physician at Monroe which was confirmed by that of Dr. Howard and the operation which plaintiff underwent at Eugene.
It is also apparent that plaintiff made every effort he could to continue uninterruptedly in the performance *Page 439 of his work. In other words, there is no suggestion of malingering or dissembling on plaintiff's part.
Dr. A.P. Howells of Albany, testifying as an expert, expressed his opinion that the pus sac was caused by the trauma resulting from the blow on the back.
The writer's long and pleasant acquaintanceship with Dr. Howells, who practiced his profession for many years at Albany, may over-evaluate that doctor's opinion; and for that reason, the writer prefers to call attention to the fact that not one syllable of testimony was introduced by the commission to refute, explain or modify the showing made by plaintiff through his own testimony and that of his witnesses.
This view of the record is made here to make it clear that these are the facts, which, if true, should incline any reasonable person to permit plaintiff to make a deferred filing of his claim.
It is also stated in the original opinion that the writer thinks that, after filing the claim, having first heard a recital of plaintiff's account above outlined, the commission should not thereafter have rejected the claim on the ground that it had not been filed within three months after the injury. We are indebted to plaintiff's counsel for the following citations which announce this principle: Yeager v. State Compensation Commissioner,113 W. Va. 257, 167 S.E. 617; Calloway v. State CompensationCommissioner, 113 W. Va. 47, 166 S.E. 700.
While the writer is of the opinion that the question whether a filing of plaintiff's claim actually transpired is one of fact and that it was properly submitted to a jury which found that such claim was filed, it is to be noted that in any view that has been considered by *Page 440 the courts as to what constituted the filing of a paper, the record in the instant case supports plaintiff's contention that his claim was filed.
"Originally the filing of a paper consisted in having the proper officer put it upon a string (filum) upon which the other papers in the proceeding were placed. It now signifies an act of the clerk; depositing; depositing for the purpose of being filed; delivery of a paper to the proper officer to be kept on file; placing and leaving a paper among the files; placing a paper in the proper official custody by the party charged with this duty, and the making of the proper endorsement by the officer; presenting a paper at the proper office and leaving it there, deposited with the papers in such office; receiving a paper into custody, and giving it a place among other papers; the act of either party bringing the paper and depositing it with the officer for keeping; or the act of the officer in folding, indorsing and putting up the paper. The term imports that the paper shall remain with the clerk as a record. Filing is not complete until the document is delivered and received; anything short of delivery would leave the filing a disputable fact. Although it has been said that the word `filing' describes the indorsement on a paper of the day when it is left in a public office, the indorsement upon the paper of the time of its reception is not, strictly speaking, a part of the operation of filing; it is a mere memorandum serving as evidence of the fact." 25 C.J. Subject, File, p. 1126, (§ 5) E.
"Under modern statutes a paper, whose filing carries notice, or affects private rights, is filed when it is deposited with the proper officer at his office, and not elsewhere. Ballentine's Law Dictionary, p. 502, citing 23 R.C.L. 186."
As set forth in the original opinion, the petition for rehearing filed by plaintiff asks for a rehearing of his claim"heretofore filed" and refers to the filing of his claim within one year. *Page 441 Smith v. State Industrial Acci. Com., 104 Or. 640,208 P. 746, was decided before any formal pleadings were required or permitted upon appeal to the circuit court from an order of the commission. The doctrine of that case is that the law has placed upon the commission the duty of selecting a physician to treat injured claimants and that, from the honest exercise of the discretion so given, there is no appeal. That question is not involved in the case at bar.
Since that decision was rendered, the statute has been amended by providing for the filing of a petition for rehearing and a complaint in order to perfect an appeal.
The present statute states what the petition and complaint shall set forth. The writer thinks that when plaintiff's claim for compensation had been denied because, as the order denying it states, said claim had not been filed within three months, it was not only his right to appeal from such order but such a course was the only one open to the claimant.
Such is the doctrine of Rohde v. State Industrial AccidentCom., 108 Or. 426, 217 P. 627.
The following is an excerpt from the Rohde case:
"The only direct action taken by the commission upon the claim is embodied in the memorandum already quoted:
`Suspension — Approved by the commission July 23, '19__ no claim presented.'
This determination of the commission that no claim had been presented is clearly supported by the document itself and the testimony of the claimant that he did not authorize its filing. This decision was obviously correct and comes within the scope of Section 6637, Or. Laws, requiring an appeal to be taken within sixty days after notice of the final action of the commission. *Page 442 But whether right or wrong, it was a decision and if theclaimant would overturn it, he must pursue the remedy prescribedby the statute by appealing within sixty days thereafter." (Italics supplied.)
The Rohde case was decided a year later than the Smith case. In the case at bar, in effect the commission made an order after having conducted its rehearing of plaintiff's claim for compensation that no claim had been presented within the time prescribed by law. To hold that plaintiff could not appeal in the instant case, or that he could invoke some other proceeding than an appeal in his attack upon the order of the commission, is to overrule the doctrine of the Rohde case above quoted.
To hold that the appellate court must be loaded down with equipment and facilities for determining the schedule of compensation to be applied at a stage of the case where the commission merely says no claim has been filed and the claimant takes a contrary position, is, in the opinion of the writer, unreasonable, unnecessary and unduly burdensome.
Upon rehearing, it has been urged that there was no action by the commission sanctioning the deferred filing of plaintiff's claim; but, at best, such action was taken by but one member of the commission. The writer is of the opinion that the subsequent course, which admittedly was taken by the commission, refutes the contention that the filing of plaintiff's claim was unauthorized. It cannot be said that the action of the commission in granting plaintiff's petition for rehearing was merely that of one commissioner, nor that the rehearing itself, at which testimony was taken, was merely the act of one commissioner. The writer thinks that it would impair and impede the conduct of the commission's business to hold that, in order to assure a valid deferred *Page 443 filing of a claim for compensation, the commission would have to attend in a body, perhaps convene in formal session, and enter a written order directing such filing. The nature of business conducted by the commission, in the opinion of the writer, requires much of it to be attended to by but one commissioner, who, in imparting it to his fellow commissioners and securing their approval, saves much time and advances the public interests.
The record is entirely silent as to the purported lack of authority of one commissioner to attend to such a filing. It is, however, replete with evidence that such filing was ratified by the entire commission.
Although this case has been twice argued in this court, no suggestion has been forthcoming that any other or different course has been or is being taken in filing claims than that which was taken in filing plaintiff's claim.
It is argued that the volume of business is such that to require applications to make deferred filings to be treated as such only, and therefore not as the applications for compensation are treated, will require an increased office force. This argument does not appeal to the writer. The county clerks could argue with just as much vehemence that there should be no distinction between the filing of a return on a marriage license and that of a notice of appeal from the judgment of the circuit court.
A registry of applications for permission to make deferred filings would be no more difficult to maintain than the registry of claims themselves. It is the view of the writer that they are separate, distinct and different documents one from the other. *Page 444
While in this case the writer has indicated that after filing plaintiff's claim within the year prescribed by statute therefor, the commission should not have rejected it because it was not seasonably filed, it must be understood that it is because of the facts in this particular case that such a declaration is made. Circumstances, such as misrepresentation, mistake or fraud would render such a rule inapplicable; but those elements are not present here.
It is true that on February 23, 1938, plaintiff wrote the following letter, misdated February 20, 1937, to the commission:
"Dear Sirs:
Last June while working for R.A. Christianson Logging Co. Inc., of Newport I was hit in the back by a limb. Geo. Smith who was working with me took me to Taft and Dr. Hohl, who examined me, said there was no ribs broken, just a bad bruise, but would be layed up a week to have Christianson sign the Compensation blank. This was on Friday but when Monday came my back wasn't so very sore and as I had charge of the falling bucking I felt I should be on the job so went back to work and as Christianson had only a small crew and had had several accidents, I didn't feel like making his rate any higher as he said it was already 10 or 10 1/2% so I didn't have him sign it, but I soon began to loose strength and weight and was under the Drs. care but he didn't help me any. I had pains in my back and side and on Dec. 3rd I went completely down. The Dr. taped me and I went to a private hospital in Ocean Lake, stayed there ten days and my brother came and took me to the Eugene hospital. I was X-rayed and operated on. They drained out almost a qt. of pus but not connected with pleura or lung but caused by this hurt. Now I am not trying to chisel or slip anything over on the Comm. as I have worked steady in the woods for the last twenty years, the last five for R.A. Christianson, *Page 445 and have never drawn any compensation. I would like to know if there is any chance to get something out of this. If it is too late there is no harm done as I feel it was my fault for not laying off when I was hurt. Please let me hear from you.
Yours truly, E.B. Wooldridge."
The writer finds nothing in that letter, which was the only evidence introduced by the commission before the trial court, that would warrant the commission in rescinding its action in permitting plaintiff's deferred filing of his claim for compensation.
For these reasons, the writer is of the opinion that the court should adhere to its original opinion, and hence the writer dissents from the opinion of the court on rehearing. *Page 446