Butterfield v. State Indus. Acc. Commission

• Decision Date: 13 May 1924
• Citation: 226 P. 216,111 Or. 149
• Parties: BUTTERFIELD v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

226 P. 216

111 Or. 149

BUTTERFIELD v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

May 13, 1924

In Bank.

Appeal from Circuit Court, Coos County; John C. Kendall, Judge.

On petition for rehearing. Former opinion (223 P. 941) adhered to.

I. H. Van Winkle, Atty. Gen., and James West, Asst Atty. Gen., for appellant.

J. W McInturff, of Marshfield, for respondent.

COSHOW J.

The Attorney General of the state has filed a very urgent petition for a rehearing alleging several grounds of error in the former opinion. We would not have burdened the record with another opinion, but for the fact that we believe it may be helpful to the profession to set at rest, if possible, the procedure of prosecuting claims against the state industrial accident fund.

The notice of appeal to this court is given in the name of the state of Oregon. The appeal was dismissed because the state of Oregon is not a party to the proceeding. The learned Attorney General, for his first allegation of error, charges the court with having changed the title in its former opinion in violation of section 549, Or. L. The transcript brought here by the Attorney General, in his attempted appeal, is entitled, "Hettie Butterfield, Respondent, v. State Industrial Accident Commission of the State of Oregon Appellant." The appellant's brief bears the title, "In the matter of the appeal of Hettie Butterfield." There was no intention to change the title of the case. The title of the cause is a formal matter. Its purpose is to identify the parties with the cause of action. Either title employed would serve that purpose. In Adams v. Kelly, 44 Or. 66, 69, 74 P. 399, 400 this court, speaking through Mr. Justice Wolverton, said:

"The object of the title is to identify the pleading with the action and the court, and it has very generally been treated as formal in character."

This statement is supported by a number of authorities. In Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 214, 94 P. 181, 95 P. 498, 102 P. 175, 1016, the notice of appeal was given under this title: "In the Circuit Court of the United States for the county of Coos." This court held it immaterial.

The next complaint is expressed in this language:

"The decision declares that the state of Oregon has no interest in appeals from the Accident Commission."

The Attorney General has misunderstood the opinion. What the opinion holds is that the state of Oregon is not a party to the proceeding and cannot, therefore, appeal. Only parties to the proceeding can appeal from a judgment or final order in that proceeding. Mr. Justice McBride, in West v. Kozer, 104 Or. 94, 96, 206 P. 542, said:

"There is no doubt of the existence of a contract between the employer, the employee and the state, that in case of injury to the employee his compensation should be adjusted and paid from the fund provided in that act."

This is not equivalent to saying that the state is a party to the proceeding adjusting a claim under the act.

The Workmen's Compensation Act (Or. L. §§ 6605-6659) has prescribed the mode of procedure. An injured workman must present his claim to the State Industrial Accident Commission. If he is not satisfied with the final order of that Commission, he is given the right of appeal to the circuit court. Notice of appeal is served by registered mail on the Commission. That procedure was followed in the instant case. At no stage of the proceedings is the state made a party. The notice of appeal is entitled, "Hettie Butterfield, Appellant, v. State Industrial Accident Commission of the State of Oregon, Respondent." This notice of appeal sets out the facts upon which the claimant seeks to recover compensation from the state industrial accident fund. Later an amended notice of appeal is given, entitled, "In the matter of the appeal of Hettie Butterfield," and this was accompanied by an "amended petition and complaint," which is entitled, "Hettie Butterfield, Plaintiff, v. State Industrial Accident Commission of the State of Oregon, Defendant, and J. W. Ferguson, D. A. Elkins and William A. Marshal, as Members of such Commission." The amended petition and complaint again sets out the facts upon which the claimant seeks to recover. The order of default and subsequent proceedings in the circuit court bear the same title as the amended petition and complaint.

In Hazard's Appeal, 9 Or. 366, this court, speaking through Mr. Justice Watson, refused to allow a fee to the district attorney in a proceeding to foreclose a mortgage in favor of the State Land Board because the state was not a party, among other things saying:

"The whole power of investment and management of these funds is invested, by the Constitution and laws, in the Governor, secretary of state and state treasurer, as a board, and when the state is not a party to the record, no other officer can rightfully intervene and assume any authority over the subject."

The court in that case distinguishes it from the case of the Claim of Ison, 6 Or. 465, which involves the same question. In the Ison Case, the state of Oregon was the party plaintiff, and for that reason the district attorney was allowed to recover fees for identically the same service for which the district attorney in the case of Hazard's Appeal, cited above, was refused. The only distinction was that in one case the state of Oregon was a party to the record, and in the other case the state of Oregon was not a party to the record. The opinion in both cases was rendered by Mr. Justice Watson.

The Attorney General also complains because the former opinion in the instant case held the State Industrial Accident Commission to be a corporation. The court so held for the purpose of supporting a proceeding in the name of the State Industrial Accident Commission. Its opinion in that regard is supported by the cases of Dunn v. State University, 9 Or. 357; Liggett v. Ladd, 23 Or. 26, 45, 31 P. 81; and Salem Mills Co. v. Lord, 42 Or. 82, 90, 69 P. 1033, 70 P. 832. So far as this appeal is concerned, it is immaterial whether it is a corporation or not. The opinion does not hold that it is a corporation in the ordinary sense of the word, such as a private or a municipal corporation.

All cases heretofore appealed to this court involving claims against the state industrial accident fund have included the name of the State Industrial Accident Commission as the party defendant. Most of the appeals have been taken to this court by the Attorney General. This proceeding has been followed for almost ten years. An examination of numerous cases appealed to the Supreme Court of the state of Washington discloses that invariably the Commission is the party defendant where the appeal was the outgrowth of a claim against the accident fund by the injured workman. In a strict sense of the word, the State Industrial Accident Commission is not sued by the claimant. The claimant simply makes a claim against the accident fund. The title used in the instant case and similar cases is convenient for indexing and for the purpose of identifying the parties with the cause and the court. The case of State v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. (N. S.) 466, cited by the learned Attorney General, is not in point. That was a case instituted by Davis-Smith Company as relators for the purpose of testing the constitutionality of the Workmen's Compensation Act for the state of Washington.

The learned Attorney General also complains because the original opinion states that the state is interested in the fund because it contributes thereto. He asserts that--

"The state of Oregon contributes not one cent from its general fund to the accident fund."

Originally, the Workmen's Compensation Act prescribed that a certain percentage of the fund should be contributed by the state. Section 6625, Or. L., as amended by chapter 256, Gen. Laws of 1923, provides as follows:

"There is also appropriated annually, after June 30, 1921, except for the period between June 30, 1923, and June 30, 1925, out of any moneys in the state treasury not otherwise appropriated, a sum equal to one-half of the total administrative expenditures of the Commission, exclusive of expenditures for physiotherapy and vocational rehabilitation, and the moneys so appropriated shall become a part of such fund."

Indeed, it may be suggested that, if the state is the real party in interest, then no appeal lies from the judgment of the circuit court, because the state cannot be sued. Constitution, art. 4, § 24; Salem Mills Co. v. Lord, 42 Or. 82, 69 P. 1033, 70 P. 832. The appeal from the final order of the Commission by the claimant conferred jurisdiction on the circuit court to determine whether or not the Commission has made a correct order in the premises. There would be no parties in the ordinary sense in which the word is used. The claimant alone would be interested in appealing from the judgment of the circuit court. This immunity does not obtain when an agency of the state is a party.

"But it is contended by appellants that whether incorporated or not, the board of directors are mere agents or officers of the state, and hold the property in controversy in trust for the state, the real party in interest. Hence they infer that the board of directors are shielded by the immunity from suit which belongs to the state. But this is an error. The immunity of the principal in such a case does not extend to the agent.

"It matters not if the state is the real party in interest, provided the legal title and possession are in the agent, so that it is not necessary to make the state a party on the record. Osborn v. The Bank of the United States, 9 Wheat. 738; Michigan State Bank v. Hastings, 1 Douglas (Mich. R.) 225; Garr v. Bright, 1 Paige Ch. 157.

...