I concur in the opinion of the court on the right of plaintiff to compensation, and with some reluctance I also concur in the result on the issue concerning attorney's fees. I do not think we should be bound by or give our approval to the decision in the case of Carr v. State Industrial Accident Commission, 153 Or. 517,57 P.2d 1278, cited by the majority.
In that case, the workman was injured on July 5, 1934; he received compensation until September 18, 1935, when the claim was closed over his protest. Upon appeal and jury trial in the circuit court it was determined that he was permanently and totally disabled. Judgment on the verdict was rendered as of January 23, 1936, slightly more than four months after the closing of his claim. It is obvious that, unless the workman had a wife and more than 10 children under 18 years of age, there could not have accrued as much as $500 between the closing of this case and the date of the judgment: 7 O.C.L.A., 102-1756. Yet the court ordered that an attorney's fee be "paid in a single *Page 518 cash payment forthwith, and that said sum of money be charged against the reserve of the said claimant." Such a ruling, in my opinion nullified the beneficial purposes of the compensation act. Under the provisions of 7 O.C.L.A., 102-1775, in an appeal to the circuit court the judge determines the extent of the fee and the manner of its payment. If, at the time of the judgment, a sufficient sum of compensation, both due and unpaid, has accrued to more than cover the whole attorney fee, I concede that the judge has discretionary power to prefer the attorney to the injured workman, though I should never do it. But when, as in the Carr case, the court awarded to the attorney more than was then due the workman, I think it exceeded both its discretion and its power. Its action was in effect an order that the workman's compensation be paid in a lump sum before its normal accrual. Under the law of 1933 (effective in the Carr case) and under the present law, the only body empowered to authorize lump sum payments is the Commission. 7 O.C.L.A., 102-1766. If, in the Carr case, the injured workman had recovered or died shortly after the trial it seems likely that the cash payment of the attorney fee would have absorbed all of the installments which had accrued from the date of the accident to the time of the judgment. The attorney would have taken a $500 contingent fee which had been computed and fixed on the basis of a recovery that the workman never received. The Carr case purported to be based on a statute since amended. It received the concurrence of but two judges, two others concurring in the result. I think it was wrong on the facts and should not influence our decision here.
I concede that the case at bar is on a different footing. Here the injured workman was awarded permanent *Page 519 partial disability so that under the express provisions of 7 O.C.L.A., 102-1761, his beneficiary in the event of his death would be entitled to receive the balance of the award to the full sum of $1,900 for 100 per cent loss of a hand plus $120 for total temporary disability. The plaintiff was unmarried, was apparently in no immediate need and requested the court to pay the full attorney fee out of the unpaid accruals which were due at the date of the judgment. The payment was within the discretionary power of the court, but the result is unfortunate, and as a precedent it would, I think, be unjust. At the date of the judgment and by virtue of it the plaintiff became entitled to $120 for his temporary total disability which covered the period from the date of the accident, September 13, 1939, to January 15, 1940. He was entitled to compensation for permanent partial disability at the rate of $35 per month, from January 15, 1940, to January 15, 1941 (the date of the judgment), or a total of $420. Thus, at the date of the judgment, $540 was presently due the workman. Out of this, the court awarded to the attorney $500, leaving the injured man $40 compensation after 16 months of disability without pay. I think it is more in harmony with the spirit of the statute that judicial discretion should be so exercised as to give to the attorney, out of an accrued sum at the date of the judgment, that portion of his total fee which the accrued sum bears to the estimated total compensation to which the plaintiff will ultimately be entitled. The attorney should thereafter receive his fee in ratable installments as plaintiff receives his compensation.
In a recent case this court expressed disapproval of the practice of ordering the payment of the entire attorney's fee out of the first funds which have accrued. *Page 520 In the case of Dickison v. State Industrial AccidentCommission, 165 Or. 306, 107 P.2d 104, the plaintiff's wife filed a claim on account of the death of her husband. The Commission rejected the claim, but on appeal she received judgment. The family of the deceased consisted of the plaintiff and six minor children. Nine and a half months had elapsed between the death of the workman and the date of the judgment, and under the statute (7 O.C.L.A., 102-1755) considerably more than $500 was presently due. The circuit court awarded an attorney fee of $500 to be paid "in a lump sum." On appeal by the Commission, this court in an opinion by Mr. Justice RAND modified the judgment as to the manner of payment of the attorney's fees and directed that "25 per cent of each installment payable to respondent shall be paid to respondent's attorneys until the full sum of $500 has been paid." The Dickison case resembles the one at bar. In both cases sufficient funds had accrued to cover the total attorney's fee. There are dicta in the Carr case which seem to me to support the position here advanced, although the actual decision does not. See, also, Hinkle v. State IndustrialAccident Commission, 163 Or. 395 at 409, 97 P.2d 725, (1940).
The authorizing of a cash payment to the attorney of the full amount of the fee at the time of the judgment would work manifest injustice if a workman who had been awarded permanent partial disability should wholly recover (a contingency which of course is impossible in this case where there was the loss of a hand). The attorney would receive full pay though the workman might never receive the full compensation upon which the fee was calculated. Again, if the workman were the sole support of a family the policy here *Page 521 followed might cast them all on relief for many months while the compensation which had accrued was appropriated for the benefit of the attorney instead of to the debts and expenses of the workman. In such a case, I think it the duty of the court to withhold approval even if the workman had contracted that his attorney should be paid out of the first funds.
It may be that I have gone beyond the narrow issues of the instant case, but it is because experience on the circuit leads me to believe that the trial courts are entitled to these observations as a guide to discretion.
Motion for additional attorneys' fee denied March 24, 1942 ON MOTION FOR ATTORNEYS' FEE (123 P.2d 800)