Fireman's Fund Ins. Co. v. Peterson, 9549.

• Decision Date: 03 June 1941
• Docket Number: No. 9549.,9549.
• Parties: FIREMAN'S FUND INS. CO. et al. v. PETERSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

120 F.2d 547 (1941)

FIREMAN'S FUND INS. CO. et al. v. PETERSON et al.

No. 9549.

Circuit Court of Appeals, Ninth Circuit.

June 3, 1941.

Harry L. Raffety, David C. Pickett, and Ernest J. Burrows, all of Portland, Or., John H. Black, of San Francisco, Cal., Harry B. Beckett, of Portland, Or., and James M. Wallace, of San Francisco, Cal., for appellants.

Wm. P. Lord and T. Walter Gillard, both of Portland, Or., for appellee A. M. Peterson.

Carl C. Donaugh, U. S. Atty., of Portland, Or., for appellee Wm. A. Marshall.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Appellants seek review of an order setting aside an award and compensation order made by Marshall as Deputy Commissioner, under the Longshoremen's and Harbor Workers' Compensation Act, 33 U. S.C.A. § 901 et seq.

On May 11, 1938, Peterson while working as a longshoreman for the employer or employers here involved, sustained an injury to his left leg. Peterson filed with Marshall a claim for compensation. Upon hearing thereof, the only question at issue was "the determination of the average annual earnings of the claimant at the time of his injury" as stated by Marshall in his findings.

In determining that issue, Marshall said: "* * * During the period from September, 1936, to September, 1937, the claimant was employed in a lath mill and in an insulating board factory, earning a total in wages of $1,300.00. From December 31, 1937, to the date of his injury, May 11, 1938, the claimant was intermittently employed as a longshoreman at St. Helens, in the State of Oregon. His status was that of a permit man, and he had opportunity to secure employment at the occupation of longshoring out of that port only after all the members of the longshoremen's union were employed. From December 31, 1937, to and including May 11, 1938, the date of his injury, the claimant earned in the occupation of longshoreman a total of $125.40, an average per week of $6.65. I find that the average annual earnings of the claimant in the employment in which he was working at the time of his injury amounts to 52 times $6.65 or $345.80."

Accordingly, an award of compensation at the rate of $6.65 per week for seven and six-sevenths weeks was made to Peterson.

Peterson then brought this suit, alleging that Marshall erred in not determining that Peterson's average annual earnings in the year prior to his injury were $1,300 — the amount earned by Peterson while working in the lath mill and in the insulating board factory. Peterson prayed that an injunction issue requiring Marshall to set aside the award and compensation order and to amend such order so as to allow Peterson the compensation to which he had alleged he was entitled, and "for such other and further relief as may be meet with the principles of equity". The court below set aside the award, and this appeal followed.

Appellants contend that the court should have dismissed the suit because the relief prayed for was beyond the power of the court, since the court is empowered to set aside the...