Holmes v. State Indus. Acc. Commission

• Decision Date: 12 July 1961
• Citation: 227 Or. 562,363 P.2d 563
• Parties: Leona HOLMES, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 563

363 P.2d 563

227 Or. 562

Leona HOLMES, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Respondent.

Supreme Court of Oregon, In Banc.

July 12, 1961.

Clifford B. Olsen, Portland, for the petition.

ROSSMAN, Justice.

The plaintiff-appellant has filed a petition for a rehearing in which she complains, in part, because our opinion did not mention Bandy v. Norris, Beggs and Simpson, 222 Or. 1, 342 P.2d 839, 351 P.2d 445, which her brief had cited. The plaintiff contends that the Bandy case requires a holding that the order entered by the defendant commissioner April 18, 1957, and which ordered the payment to the plaintiff of workmen's compensation was an adjudication under the doctrine of res judicata to the effect that the plaintiff's employer, Conrad E. Gates, was engaged in a hazardous occupation at the time of her injury. In writing our opinion we thought that the facts and the issues of the Bandy case were sufficiently unlike those of the one awaiting decision that a review of it was not called for.

In the case now before us the defendant (Industrial Accident Commission) after paying the plaintiff $4,689.90 under a belief that her employer (Conrad E. Gates) was subject to the Workmen's Compensation Act vacated and annulled the order of compensation when it discovered that Gates was not engaged in a hazardous employment and had not voluntarily embraced the act. From the action of the commission in so doing the plaintiff appealed to the circuit court, and from the action of that body appealed to this court. Our previous decision accepted as the fulcrum of the case ORS 656.278 which confers upon the defendant commission continuing jurisdiction over its 'orders or awards' together with power to 'modify, change or terminate' them.

The Bandy case which the plaintiff cites was not under the Workmen's Compensation Act; it was an action based upon the Oregon Employers' Liability Law. The plaintiff had been injured while employed as elevator operator in the Central Building in Portland. It her action at law she named as defendant a firm entitled Norris Beggs and Simpson and averred that it was her employer. That firm managed the Central Building as the agents of the estate of Rose White, deceased, owner of the structure. The action at law which resulted in a verdict for the plaintiff was preceded by a claim, filed by her with the Industrial Accident Commission in which she named as her employer the estate of Rose White, deceased. The estate was a contributor to the Industrial Accident Fund and was subject to the Workmen's Compensation Act. The claim was allowed and paid before the plaintiff instituted her action against Norris, Beggs and Simpson. The order which allowed the claim and directed payment thereof was never questioned or vacated.

Before going on we take note of a distinction which we deem germane between the case at bar and the Bandy case. In the case at bar the plaintiff selected as the subject matter of her plea of res judicata the order of April 18, 1957, which the defendant commission had, however, vacated. She challenged the order which vacated it through the appeal which brought this case to this court. In the Bandy case the order which the defendant commission had entered and which ruled that the plaintiff (Mrs. Bandy) was the employee of the estate of Rose White, deceased, was still in full force and effect when she instituted her action at law which named as her employer Norris, Beggs and Simpson. In fact, that order has never been questioned or vacated.

In the Bandy case the defendants, Norris, Beggs and Simpson, filed an answer which averred that the estate of Rose White, deceased, and not the answering defendants, was the plaintiff's employer at the time of her injury. It further alleged that both Mrs. Bandy and the estate of Rose White, deceased were subject to the Workmen's Compensation Act. In addition it set up that Mrs. Bandy had filed a claim for compensation with the Industrial Accident Commission and that the commission had paid her the amount of her claim. Upon Mrs. Bandy's (claimant's) motion the answer just summarized was stricken.

The decision of the Bandy case brought forth four opinions. One was the majority opinion and another was a specially concurring opinion written by Mr. Justice Lusk. Both held that the answer just mentioned should not have been stricken. The other two opinions were not concerned with the issues now before us, although one of them was a dissenting opinion.

We mention once more that in the case at bar the order which granted compensation and upon which the plaintiff depends was vacated and that from the order which expunged it from the commission's files the plaintiff prosecuted the appeal which is now pending before us. We have pointed out that the order was vacated when the defendant commission discovered that the plaintiff's employer was not engaged in a hazardous occupation, that he had not elected to submit himself to the Workmen's Compensation Act and was not a contributor to the Industrial Accident Fund.

Our previous opinion took note that the appeal from the Industrial Accident Commission to the circuit court was authorized by ORS 656.288(2). A ruling by an administrative quasi-judicial body which is subjected by statute to review in the circuit court cannot be preserved from review through invoking in its favor some strange or novel phase of the doctrine of res judicata. Yet the plaintiff seems to believe that the order which the defendant commission made April 18, 1957, somehow took its place in an area which is off limits for the courts and that the order must not be judicially molested. She is, of course, wrong. We think that in lieu of considering the doctrine of res judicata we must give attention to ORS 656.278 from which we previously quoted in part and which we will presently set forth in full.

In the Bandy case the order of compensation, as we have pointed out, was never vacated. In fact, no one ever sought its vacation. The money was paid to Mrs. Bandy and she kept it. The majority opinion in the Bandy case said, 'We assume that it will not be necessary to cite authority to the effect that the Commission not only has the power, but the duty, to determine in the first instance, the right to compensation.' [222 Or. 1, 342 P.2d 844.] The commission performed that duty and in so doing entered an order which declared that Mrs. Bandy was the employee of the estate of Rose White, deceased. The order, as we have said, was never vacated.

We will now take note of the parts of the Bandy opinion which the plaintiff cites.

The majority opinion in the Bandy case, after citing an annotation in 122 A.L.R. 550, stated:

'We think the decisions there noted are to the effect that once the finding as to [the] employer and employee relationship is made by the tribunal intrusted with that duty, the decision is final and conclusive until set aside.'

We pause on the words 'final and conclusive until set aside.' It will be recalled that our opinion in ...