Drake Bakeries, Inc. v. Butler

• Citation: 185 A.2d 108,95 R.I. 143
• Decision Date: 29 October 1962
• Docket Number: No. 2943,2943
• Parties: DRAKE BAKERIES, INC. v. Henry C. BUTLER. Eq.
• Court: United States State Supreme Court of Rhode Island

Page 108

185 A.2d 108

95 R.I. 143

DRAKE BAKERIES, INC. v. Henry C. BUTLER.

Eq. No. 2943.

Supreme Court of Rhode Island.

Oct. 29, 1962.

Worrell & Hodge, Eldridge H. Henning, Jr., Richard D. Worrell, Providence, for petitioner.

Stephen F. Mullen, Providence, for respondent.

PAOLINO, Justice.

This is an employee's motion to assess costs against an employer for services rendered by his attorney in successfully prosecuting before this court an appeal from a final decree of the workmen's compensation commission. See Drake Bakeries, Inc. v. Butler, R.I., 178 A.2d 295.

The motion is based on the provisions of G.L.1956, § 28-35-32, as amended by P.L.1961, chap. 134, which became effective on June 8, 1961, and reads as follows:

'Costs--Counsel and witness fees.--No fee shall be charged by the clerk of any court or of the workmen's compensation commission for the performance of any service required by this chapter, except for certified copies of decrees and copies of transcripts. In proceedings under said chapter, costs shall be awarded, including counsel fees and fees for medical and other expert witnesses, to employees who successfully prosecute petitions for compensation, petitions for medical expenses, petitions to amend preliminary agreements and all other employee petitions, except petitions for lump sum commutation, and to employees who successfully defend, in whole or in part, petitions for review filed by employers. Such costs shall be assessed against the employer by a single commissioner, by the full commission on appeal and by the supreme court on appeal consistent with the services rendered before each tribunal and shall be made a part of the decree. No employee's attorney shall accept any other or additional fees for his services for the particular petition for which the fees are awarded in each tribunal. No costs or counsel fees shall be awarded to an employee whose petition is filed within twenty-one (21) days of the date of his injury.'

A brief recital of the travel of this case will be helpful. The employee, whom we shall hereinafter refer to as respondent, was awarded compensation for partial incapacity by a final decree of the commission entered on May 9, 1960, for a compensable injury sustained prior to that date while employed by Drake Bakeries, Inc., hereinafter referred to as petitioner. On October 11, 1960, petitioner filed a notice of intention to discontinue, suspend or reduce payments on the ground that respondent was able to return to the same work which he performed at the time of his injury. The respondent filed a notice of intention to dispute petitioner's claim on the ground that his incapacity still continued.

On May 1, 1961, the commission entered a final decree affirming the decree of the single commissioner ordering discontinuance of compensation on the ground that respondent was able to perform his former work. From such decree respondent appealed to this court. In Drake Bakeries, Inc. v. Butler, supra, filed March 1, 1962, his appeal was sustained on the ground that the commission had committed prejudicial error in failing to consider a certain medical report. On March 26, 1962 the commission entered a new decree reversing the decree entered on May 1, 1961.

On May 2, 1962 respondent filed a petition in this court praying that we order the commission to certify the records of the case so that we could consider a motion by him to assess costs against petitioner for counsel fees for successfully prosecuting his appeal in this court. We granted the petition and thereafter, on May 8, 1962, respondent filed the instant motion together with a certificate of his attorney setting forth the services rendered by him in preparing and prosecuting the appeal in question. Such certificate also states that respondent's attorney has complied with the requirements of § 28-35-32, as amended, and that a fair and reasonable fee for his services is $500. The respondent is making no claim for legal services rendered prior to the effective date of the amendment, June 8, 1961.

The petitioner concedes that § 28-35-32, as amended, is procedural and that if the statute is valid and a counsel fee is assessed as costs, the fee should be consistent with the services rendered before this court since June 8, 1961.

Before considering the constitutional questions raised by petitioner we shall dispose of two preliminary questions. Its contention that § 28-35-32, as amended, does not apply on the ground that this proceeding is not a petition...