The briefs concede the facts admitted by the demurrer to the complaint to be substantially as follows: Harry Dunseath, hereafter called the plaintiff, is an attorney at law residing in Reno. The Nevada industrial commission, hereafter called the defendant, has offices in Carson City. The Tonopah Extension Mining Company is a corporation engaged in mining at Tonopah, Nye County. Travis H. Lynch at the times mentioned was in the employ of said corporation, in what capacity the record does not show. Both the corporation and Lynch had accepted the terms of the statute known as the "Nevada Industrial Insurance Act," hereafter called "the act." In 1917 Travis H. Lynch was accidently injured in the course of his employment. The character of his injury is not shown. In August, 1917, the defendant awarded Lynch compensation for total disability for a period of one year. Thereafter the commission determined that Lynch was totally disabled, and awarded him what it considered to be, under the law, an amount which represented the total amount of compensation that the law authorized.
Lynch contended before the commission that he was entitled to the compensation allowed under the law for permanent total disability. This contention was denied and refused by the commission, and Lynch was informed that his compensation would cease at the time specified in the award. Lynch was not represented by *Page 113 the plaintiff, or any attorney, in the proceedings before the commission. In June, 1917, and after he was informed that his compensation would cease at a specified time, Lynch consulted and employed the plaintiff to prosecute an action against the commission in the district court in and for Nye County to recover the sum of $50 per month for life as compensation payable under the act for permanent total disability.
Lynch entered into an agreement with the plaintiff whereby he agreed to pay plaintiff as full compensation for his services $600 out of the amount recovered in the action. The action was instituted, and upon issues joined, upon an agreed statement of facts, Lynch had judgment against the commission for the sum of $50 per month, payable each and every month during his life, beginning on July 15, 1928. The commission paid Lynch on account of the judgment the sum of $350. In February, 1929, a controversy arose between Lynch and the plaintiff over the fee agreed to be paid plaintiff. Lynch refused to carry out his agreement with plaintiff. Thereupon, on February 28, 1929, the plaintiff filed a declaration of attorney's lien in said court and cause upon the judgment recovered in favor of his client, Lynch, for the sum of $600. In March, 1929, plaintiff commenced this suit in the district court of the First judicial district in and for Ormsby County, at Carson City, to impose his alleged lien upon the proceeds of the judgment recovered in favor of his client in the hands of the defendant. The defendant demurred to the complaint upon the general ground that it did not state facts sufficient to constitute a cause of action, and upon the special ground that the contract of employment set up and made a part of the complaint was one in direct violation of the specific provisions contained in the statute creating the Nevada industrial insurance commission and that the contract was contrary to public policy. The plaintiff appeals from the decision sustaining the demurrer.
Our statute, section 5376, Revised Laws, provides that the compensation of an attorney for his services *Page 114 is governed by agreement, expressed or implied, which is not restrained by law. If then the agreement which constitutes the basis for an equitable lien against the funds in the hands of the defendant is not one restrained by law, then, under the same section of the statute, the complainant is entitled to a lien upon the proceeds of the judgment in the hands of the commission.
The learned attorney-general, who is ex officio attorney for the commission, insists in argument that the agreement constituting the equitable lien or assignment of $600 of the amount recovered in favor of Lynch is prohibited by the terms of section 28 of the statute creating the commission. The contention is based upon the assumption that, however meritorious the consideration of the agreement in question may be, the prohibition of the statute against assignments of compensation and exempting it from the payment of debts controls. The controversy between Lynch and the commission, as to the amount of compensation, was submitted to a court of competent jurisdiction for determination and decision upon an agreed statement of facts. Lynch had judgment. Should the commission refuse to pay the judgment, mandamus would be a proper remedy to enforce it. State v. Nevada Industrial Insurance Commission, 40 Nev. 220,161 P. 516. This being so, the defense interposed by the demurrer to the complaint, that the agreement constituting the equitable lien or assignment was prohibited by the terms of section 28 of the act, is not available to the defendant in this suit. Sanborn v. Maxwell, 18 App. D.C. 245.
It is my opinion that, where an injured workman has been denied and refused the compensation payable under the act, and the workman is forced to resort to his remedy at law in a court of competent jurisdiction to obtain that which the law allows, it is competent for the claimant to employ an attorney and agree to pay him for his services a fair, just, and reasonable fee contingent upon the success of the litigation. The services rendered by the plaintiff in this case were *Page 115 undoubtedly legitimate and not obnoxious to any rule of public policy. The plaintiff's services consisted of the recovery of the amount his client was entitled to under the act, and the agreement between the attorney and client, as alleged in the complaint, is at least sufficient foundation for the enforcement of the equitable lien upon the fund in the hands of the defendant and within the jurisdiction of the court.
For the reasons given, the order sustaining the demurrer should be reversed, with costs, and the cause remanded for further proceedings.