Bell v. State Indus. Acc. Commission

• Decision Date: 07 December 1937
• Citation: 74 P.2d 55,157 Or. 653
• Parties: BELL v. STATE INDUSTRIAL ACCIDENT COMMISSION (RIGGS, Intervener).
• Court: Oregon Supreme Court

74 P.2d 55

157 Or. 653

BELL v. STATE INDUSTRIAL ACCIDENT COMMISSION (RIGGS, Intervener).

Supreme Court of Oregon

December 7, 1937

Department 2.

Appeal from Circuit Court, Washington County; R. Frank Peters Judge.

Proceeding for compensation under the Workmen's Compensation Act by Henry Bell, employee, opposed by Z. J. Riggs, employer, who intervened in claimant's appeal from orders of the State Industrial Accident Commission denying compensation on demand by the commission, which filed a cross complaint against him. From a judgment of dismissal as to intervener, the commission appeals.

Affirmed.

Victor R. Griggs, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for appellant.

W. C Winslow, of Salem, for intervener.

Mark V Weatherford, of Albany, amicus curiae.

LUSK Justice.

This case began as an appeal by the plaintiff to the circuit court for Washington county from certain orders of the appellant, State Industrial Accident Commission, denying him compensation for an accidental injury which he sustained while working for the intervener and respondent, Z. J. Riggs. Riggs was brought into the case by a demand for intervention filed by the commission pursuant to the purported authority of chapter 144, p. 222, Laws 1935, section 49-1822a, Oregon Code Supp.1935, which reads as follows:

"If a workman of an employer engaged in a hazardous occupation shall receive an accidental injury prior to the time the employer has filed with the commission a notice of engaging in a hazardous occupation, as required by section 49-1822, and such workman or other beneficiaries shall file a claim for compensation with the commission on account of said injury, the cost of such claim to the industrial accident fund shall be a claim against the employer. The commission shall recover such claim from the employer for the benefit of the industrial accident fund.

"If a workman shall appeal from an order of the commission in any claim in which the alleged accident occurred before the employer filed with the commission the notice required by section 49-1822, the commission forthwith shall serve upon the employer a copy of the complaint and a demand that the employer intervene in said appeal as a party defendant. Such service shall be made in the manner provided by law for the service of summons. The employer may intervene in said appeal as a party defendant within twenty (20) days after the service of said complaint or within such further time as may be allowed by order of the court. If such employer shall not intervene in the appeal, the court shall have jurisdiction of such employer to the same extent as if he had intervened."

With its demand for intervention, the commission served upon Riggs a copy of the complaint and also filed and served upon him a cross complaint, which, after narrating the circumstances of Bell's employment, the character of work in which he was engaged, and the facts of his injury, alleged that the intervener had not given the notice of engaging in a hazardous occupation required by section 49-1822 (as amended by Laws 1935, p. 29, § 4 [Code Supp.1935, § 49-1822]), set forth the amounts which the commission would be required to expend by reason of such injury, in the event that the plaintiff should prevail on his appeal, and prayed that a judgment for those amounts, described in the pleading as "costs of the claim of plaintiff," be recovered by it against the intervener.

The intervener filed his answers to the plaintiff's complaint and the commissioner's cross complaint, putting the case at issue, and a jury trial was had, at the conclusion of which the court directed the jury to return a verdict for plaintiff against the commission, but reserved for further consideration the determination of a motion for a directed verdict submitted by the intervener. Subsequently, the court entered a judgment of dismissal of the action as to Riggs.

This appeal is taken from that judgment. No appeal has been taken from the judgment in favor of the plaintiff, and the only question before us is whether the intervener is liable under the statute, the provisions of which we have quoted.

It appears from the record that the plaintiff's claim was rejected by the commission, because, in the judgment of that body, he was not an employee of Riggs, but an independent contractor and, therefore, not subject to the provisions of the Workmen's Compensation Law (Code 1930, § 49-1801 et seq., as amended). His injury, the loss of the sight of an eye, and the fact that it was accidentally sustained, are conceded. The court directed the jury to return a special verdict in which they found that the plaintiff, at the time he was injured, was working as an employee of Riggs and was engaged in a hazardous occupation as defined by the statute. The judgment of the circuit court was in favor of Riggs, who has not appealed and is, of course, in no position to question the correctness of the trial court's rulings. The commission, as we have stated, has appealed only from the judgment dismissing the cause as to Riggs and cannot question the conclusiveness of the adjudication awarding the plaintiff compensation. The uncontradicted evidence establishes that Riggs failed to file with the commission notice of his engaging in a hazardous occupation, and, hence, all the conditions are present which, under the statute, if it be valid and enforceable, would make the employer liable for "the cost of such claim to the industrial accident fund."

The meaning of the statute is by no means clear, but, since it provides for recovery of the "claim" from the employer, for the benefit of the industrial accident fund, and authorizes the commission to implead the employer, in a case where the employee has appealed to the circuit court from an adverse ruling of the commission, we think we are justified in assuming that it was intended that judgment should be entered against the employer in that proceeding. It, therefore, becomes pertinent to inquire what sort of a judgment must be entered and what are the legal essentials of a valid judgment?

Section 2-901, Oregon Code 1930, defines a judgment as "the final determination of the rights of the parties in the action."

"A judgment is a conclusion of law from the facts proved or admitted in the suit, and in money demands must be absolute and in a specified amount." Swain v. Smith, 65 N.C. 211. In 1 Black on Judgments, (2d Ed.) § 118, the author says: "The amount of a judgment must be stated in it with certainty and precision. All judgments must be specific and certain; they must determine the rights recovered or the penalties imposed, and be such as the defendant may readily understand and be capable of performing. A judgment, it is said, must be so certain that the clerk can issue an execution by inspection of it, without reference to other entries. Hence a judgment which is uncertain as to the amount which it awards is invalid. For example, a judgment against a garnishee 'for the amount of his answer or so much thereof as will satisfy the plaintiff's debt and cost' has been held void for uncertainty. And a finding that a garnishee was liable for one of two amounts, which are to be determined by a further contingency was not considered a judgment at all."

The text is supported by the following authorities: Berry v. Anderson, 2 How. (Miss.) 649, Battell v. Lowery, 46 Iowa 49, and Early v. Moore, 4 Munf. (Va.) 262.

In Dray v. Crich, 3 Or. 298, 300, this court said: "It is of the gravest importance that, when a final judgment is rendered, the record shall be definite and certain, and show unequivocally what matters have been adjudicated, and that the decision shall be a finality in regard to the matters in issue."

This precept is cited with approval in Schmid v. City of Portland, 83 Or. 583, 591, 163 P. 1159. See, also, Dickerson v. Walker, 1 Ala. 48, Alexander v. Leland, 1 Idaho 425, and Boyken v. State, 3 Yerg. (Tenn.) 426. In 33 C.J. 1196, § 129, it is stated: "It is a general rule that a judgment must not be conditioned upon any contingency, and it has been held that an alternative or conditional judgment is wholly void." In support of this statement, are cited the cases of Puette v. Mull, 175 N.C. 535, 95 S.E. 881; Strickland v. Cox, 102 N.C. 411, 9 S.E. 414; and Dunn v. Barnes, 73 N.C. 273.

The plaintiff in this case suffered the loss of the sight of an eye. For that injury he is entitled to receive, under section 49-1827.6, Oregon Code Supp.1935, the sum of $1,000, payable at the rate of $50 per month if he is married or has a child under the age of 18 years; otherwise at the rate of $35 per month. Should he die before receiving all the payments, then under section 49-1827.7, the remaining payments will be made to the person or persons who would have been entitled to receive death benefits, if the injury causing his death had been fatal. Thus, for example, if the plaintiff here is a married man, and should he die before all the payments are made, his widow would be entitled to receive the balance of his compensation.

It is thus obvious that, at the time the judgment was rendered in the circuit court, no one knew how much the commission would be required to pay plaintiff, and no one knows it now. Should the plaintiff live until he receives all the payments, it will be one amount; should he die tomorrow, leaving no survivors, it will be a different amount; should he die tomorrow, leaving a widow, it might be a still different amount.

Section 49-1827.1, Oregon Code Supp. 1935, prescribes the benefits to be paid in case of fatal injuries. Under the terms of that section, paragraphs 7 and 8, if a surviving spouse, receiving monthly payments, shall die, leaving a child under the age of 18...