# King v. State Industrial Accident Commission > Oregon Supreme Court · November 20, 1957 · 211 Or. 40 URL: https://www.frixlaw.com/law-library/cases/9532536 ## Case - **Full name:** King v. State Industrial Accident Commission - **Court:** Oregon Supreme Court - **Decided:** November 20, 1957 - **Citations:** 211 Or. 40; 318 P.2d 272; 309 P.2d 159; 1957 Ore. LEXIS 194 - **Precedential status:** Published - **Opinion:** Concurrence by McALLISTER - **Judges:** Perry, Rossman, Brand, McAllister, Lusk, Warner, Kester - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9532536 ## Opinion text McALLISTER, J., specially concurring. In a petition for rehearing the defendant contends that the death of King was not caused by accident arising out of and in the course of his employment. Defendant argues that at the time of the accident King was not at work but was on his way to work, was in his own conveyance, was not on the employer’s premises, and was being paid for neither the use of the conveyance nor for the time in going to and from work. The petition relies on the following statement contained in a closing paragraph of the original opinion: “Without again analyzing the testimony, we express our belief that it warranted a finding that the construction of the log boom was performed by King as an employee and that at the time of his death he was on his way to resume work upon that object. * * *” (Italics supplied) *88 Taken ont of context, the above statement tends to lend support to defendant’s contention but from a reading of the entire opinion it is apparent that the court was then considering whether on the morning of his death King was an employee of Huber and Fisher and not whether at the exact time of his death King was acting in the course of his employment. There is no evidence that Kong had reached the log boom and resumed the stringing of the boom sticks at the time of his death but that is not decisive of the question. In Lamm v. Silver Falls Tbr. Co., 133 Or 468, 499 , 277 P 91 , this court, after an exhaustive consideration of the authorities, adopted, among others, the following rule for determining whether an injury to a workman arises out of and in the course of his employment: “* * * (1) An employee upon whom an injury is inflicted, while being conveyed to or from his work in a conveyance furnished by his employer as an incident of the contract of employment, is generally held entitled to compensation: American Coal Mining Co. v. Crenshaw, 77 Ind. App. 644 ( 133 N. E. 394 ); New Staunton Coal Co. v. Industrial Com., 304 Id. 613 ( 136 N. E. 782 ); Central Const. Co. v. Harrison, 137 Md. 256 ( 112 Atl. 627 ); In Ee Donovan, 217 Mass. 76 ( 104 N. E. 431 Ann. Cas. 1915C, 778); State v. District Court, 141 Minn. 348 ( 170 N. W. 218 ); Fisher v. Tidewater Bldg. Co., 96 N. J. L. 103 ( 114 Atl. 150 ); Littler v. George A. Fuller Co., 223 N. Y. 369 ( 119 N. E. 554 ); DeCamp v. Youngstown Municipal Ry. Co., 110 Ohio St. 376 ( 144 N. E. 128 ); McClain v. Kingsport Improvement Corp., 147 Tenn. 130 ( 245 S. W. 837 ); Richards v. Morris, 110 L. T. R. (N. S.) 496; E. Clemens Horst Co. v. Hartford Acc. & Indemnity Co., 27 Fed. (2d) 42; Norwood v. Tellico River Lumbr. Co., 146 Tenn. 682 ( 244 S. W. 490 , 24 A. L. R. 1227); Anderson v. Hickman & Co., 21 Butterworth’s Workmen’s Compens. Cases, 369; Hackley Co. v. *89 Industrial Comm., 165 Wis. 586 ( 162 N. W. 921 L. R. A. 1918A, 277); Scalia v. American Sumatra Tobacco Co., 93 Conn. 82 ( 105 Atl. 346 ); Morrison v. Owners, etc., 21 B. W. C. C. 163; Wirta v. North Butte Mining Co., 64 Mont. 279 ( 210 P. 332 , 30 A. L. R. 964), and Prof. Francis H. Bohlen, 25 Harv. L. Rev. 401 . * * *” In my opinion, this case falls within the foregoing rule and I concur in that portion of the opinion of the majority which so implies. In this case the workmen traveled to the dock at the edge of Alsea Bay in a pickup truck. At the dock the usual journey to the place of employment by motor vehicle over public highways ended. The vehicle was parked and the men completed preparations to engage in their employment by lacing on their logging boots and donning their hard hats. They were then ready to be conveyed by the employer across the bay to the site of the actual labor. Although the bay was open to travel by the public, it is not a means of travel usually used by individual workmen in going to and from work. It is not reasonable to assume that Huber and Fisher expected each workman to furnish his own boat and to make his own way to the log boom on the other side of the bay by rowing, or if this was too laborious, to furnish a motor at his own expense. In any event it is not necessary to make any such assumption because it clearly appears from the evidence that a tug was furnished by the employer as a means of conveying the workmen to and from the dock and the log boom and that the tug was used for that purpose many times. It seems clear that Huber and Fisher could not have carried on the business of constructing the log boom without furnishing a means whereby the workmen *90 could cross the hay to the place of the work and at the close of the day return to their vehicles. Transportation by water was vital to the employer’s operations. It is significant that when King was engaged in the performance of his logging contract as an. employer he transported his men across the bay. It is conceded by the defendant in its petition for rehearing that when King was the employer “the transportation was part of the contract of employment with King.” When King changed to the role of an employee the duty to furnish the water transportation shifted to Huber and Pisher and was accepted and performed by them. In my opinion, the transportation across the bay was an incidental if not an express term of the contract of employment between Pisher and Huber and the workmen, including King, who were engaged to construct the log boom. A question is raised in this case because for some reason which does not clearly appear from the record, King at times chose to use his own boat in lieu of the boat furnished by his employer as a means of conveying himself and his fellow workmen to the log boom. It was necessary for the men to use a boat in stringing the boom sticks and it is possible that King’s boat was more suitable for the work to be performed on the day of the accident than the employer’s tug. Whether that or some other reason caused King to use his own boat, it was still being used as an incident of the contract of employment. The ownership of the boat in this instance creates a distinction without a difference. It would be illogical to hold that these workmen were in the course of their employment when they rode to and from work in the employer’s tug but were not in the course of their employment when riding across the bay in a boat substituted by the foreman and used for *91 the benefit of the employer in lieu of the employer’s tug. In this case the fact that Bang at times substituted his boat for the tug was apparently known to the employer. When the Bung boat was used with the acquiescence of the employer, it was in effect adopted by the employer as a means of furnishing transportation under the contract of employment. There is no evidence indicating whether the men were paid for the time spent in crossing the bay but such payment is not necessary to bring the men within the course of their employment. See I-L Logging Co. v. Mfgrs. & Whlse. Ind. Exc., 202 Or 277 , 273 P2d 212 and Lamm v. Silver Falls Tbr. Co., supra. I am unable to agree with that part of the majority opinion which holds in effect that an injury sustained by a workman while traveling to and from work on a public highway in his own conveyance arises out of and in the course of his employment because he is carrying on his person or in his vehicle “impedimenta of the employment.” The majority opinion attempts to limit the application of this rule to impedimenta carried for the benefit of the employer. Upon analysis this limitation is without substance because the mere act of the workmen in getting to work is of some benefit to the employer. If the Workmen’s Compensation Act is to be amended to cover every employee during travel to and from work who carries the keys to the office or plant or papers to study or work upon at home, such amendment should be made by the legislature and not by this court. The implications inherent in the majority opinion will unduly enlarge the coverage of the act, render the extent of the enlargement uncertain and *92 necessitate many supplementary decisions by this court before the scope of the opinion is finally delineated. In this day of car pools, is only the employee who carries the keys in the course of his employment or does the rule apply to his fellow workmen riding in the same vehicle? Does coverage extend only to the lawyer on a regular retainer when carrying the legal papers of a client subject to the act, or are we extending the coverage to lawyers retained only temporarily to handle a particular legal matter? These and a host of similar questions will be settled one way or another in this court before the ramifications of the majority opinion are fully explored. The attempt in the majority opinion to east doubt upon the soundness of the very authorities upon which the opinion is based will not discourage ingenious and determined efforts to extend the coverage over the complete area thrown open by the majority opinion. I particularly disagree with those portions of the opinion which hold that horses furnished by a workman and used by him in the service of the employer are for the benefit of the employer but that tools furnished by a carpenter and used by him in the service of the employer are for the benefit of the carpenter and not the employer. Upon what difference this distinction is based and to what fine discriminations it will ultimately lead will only be ascertained by further litigation. Warner and Kester, JJ. join in this opinion. *93 On respondent’s motion for allowance of attorneys’ fees. *94 Luvaas & Cobb and Joe B. Richards, Engene, for respondent. Robert T. Thornton, Attorney General, Earl M. Preston and Ray H. Lafky, Assistant Attorneys General, Salem, for appellant. ROSSMAN, J. This cause is before us again, this time upon a motion filed by the plaintiff for the allowance to her of compensation for her attorneys for the services they performed for her from the inception of the claim to its final disposition in the foregoing opinions of this court. The total which is sought is $1,530. The latter is composed of the following amounts: (1) For services performed before the State Industrial Accident Commission........$ 250.00 (2) For services rendered in the Circuit Court....................................................-............. 680.00 (3) For services rendered in the Supreme Court...................................................... 600.00 $1,530.00 The plaintiff depends upon ORS 656.292, the pertinent part of which reads: “In case of an appeal by the commission from an adverse decision of the circuit court, if the judgment of the circuit court is affirmed, the claimant shall be allowed attorneys’ fees, to be fixed by the court, in addition to the compensation.” There must be read in connection with that section of our law ORS 656.588, which says: “(1) In all cases involving accidental injuries occurring on or after July 1, 1951, where an injured workman prevails in an appeal to the circuit *95 court from a commission order rejecting Ms original claim for compensation, the commission shall allow a reasonable attorney’s fee to the claimant’s attorney. This attorney fee shall be paid from the Industrial Accident Fund as an administrative expense. “(2) In all other cases attorneys’ fees shall continue to be paid from the claimants’ award of compensation.” From the foregoing, we see that 656.292 pertains to an appeal by the commission from a decision of the circrnt court which affirms that court. In an instance of that ldnd, “the claimant (that is, the successful respondent) shall be allowed attorneys’ fees, to be fixed by the court.” That section of our laws won its present phraseology in 1945 when Oregon Laws 1945, ch 303, was enacted. In its previous form {% 102-1774, OCLA) it did not authorize the award of attorneys’ fees. ORS 656.588 became a part of our Workmen’s Compensation Act as Oregon Laws 1951, ch 330. It is, therefore, a later enactment than ORS 656.292. It will be noticed that 656.292 authorizes “the court” to fix the fee, and the latter, upon allowance, is “in addition to the compensation.” But that section pertains to an appeal from the circuit court. ORS 656.588, which pertains to the circuit court and the allowance of an attorney’s fee for the claimant, directs that the amount of the fee shall be allowed by the commission. The fee is paid out of the Industrial Accident Fund “as an administrative expense.” For the sake of completeness, we take note of the fact that Oregon Laws 1957, ch 558, gave ORS 656.588 a new form so that it now provides that in all cases involving accidental injuries which occurred on or after July 1,1957, wherein the claimant prevailed upon appeal to the circuit court from a com *96 mission order which rejected his claim for compensation, “the court shall allow a reasonable attorney’s fee to the claimant’s attorney” to be paid out of the Industrial Accident Fund as an administrative expense. It will be recalled that this cause came before us as “an appeal by the commission from an adverse decision of the circuit court” and that our opinion affirmed the decision of the circuit court ( 309 P2d 159 ). Thereafter the commission filed a petition for a rehearing which, after being allowed, resulted in an adherence to our previous opinion ( 315 P2d 148 ). OES 656.292, as we have seen, had its origin in § 102-1774, OCLA, as amended by Oregon Laws 1945, ch 303. The latter prompted this court, in Green v. State Industrial Accident Commission, 197 Or 160 , 251 P2d 437 , 252 P2d 545 , to award the claimant an attorney fee for services performed in this court upon affirming the judgment order of the circuit court. That case, like the present one, was an appeal by the commission from an adverse decision of the circuit court. The Oregon State Bar has promulgated an Advisory Schedule of Minimum Fees and Charges which includes in its ambit services performed under our Workmen’s Compensation Act. The schedule, in the form in which it then existed, received attention in Cox v. State Industrial Accident Commission, 168 Or 508 , 121 P2d 919 , 123 P2d 800 , and Hinkle v. State Industrial Accident Commission, 163 Or 395 , 97 P2d 725 . According to the current schedule, counsel for a respondent, such as the plaintiff, should be entitled to a minimum of $200 for making an appearance in this court and preparing a brief. The schedule contemplates that for an oral argument in this court he should receive $150. It also includes this item, “Petition for rehearing, $100.00.” The part of the schedule which concerns the amount *97 of fees earned for services performed before the commission is included in the latter’s reprint of the "Workmen’s Compensation Law. As is apparent from our two foregoing opinions, this cause presented difficult issues. Counsel for the plaintiff (respondent) made appearance in this court and prepared an able brief. They delivered before us two oral arguments. The second was necessitated by the fact that the commission’s petition for a rehearing was granted and, pursuant to a suggestion from the court, took as its subject matter a phase of the case which had not seemed important when the case was first argued. Before the oral argument, counsel for the plaintiff filed with the court a typewritten brief which presented their views upon the issues developed in the petition for a rehearing. Applying the minimum schedule of fees to the situation just portrayed, the plaintiff should be allowed : Appearance and brief..............................$ 200.00 Two oral arguments.................................. 300.00 Brief upon rehearing................................ 100.00 $ 600.00 The total just mentioned is the exact amount which the plaintiff requests. We see from the Bar’s schedule that the amount which is represented by the above figures is minimal. The issues in this case were not of minimum difficulty, and the results achieved by counsel for their client did not yield for her a minimum return. The ethical principle from which OKS 656.292 springs, that the defeated appellant shall pay the attorney’s fee of his successful antagonist, is new in this jurisdiction and *98 singles out, in this instance, only one of the litigants that appear before the courts. In determining the amount of the fee which the Industrial Accident Commission must pay, the fee should not be made so burdensome that the commission will be deterred from resorting to the courts upon claims which it believes are without merit. Accordingly, we think that we are justified in embracing the minimum amounts, especially in view of the fact that the plaintiff’s petition asks for no more. The award, in the terms employed in OES 656.292, will be “in addition to the compensation.” We come now to the amounts which are sought for services performed by plaintiff’s counsel in the circuit court and before the Industrial Accident Commission. We quoted in preceding paragraphs the sections of our laws which entrust the allowance of attorneys’ fees payable out of the Industrial Accident Fund for services which are not governed by Oregon Laws 1957, ch 558, to the commission. In view of that fact, we have no authority to award any fee in this matter except the one which we have allowed in the amount of $600. This cause is remanded to the circuit court so that it may refer it to the commission to fix a reasonable attorney’s fee. In view of the fact that the mandate was issued (September 27, 1957) before the present motion was filed (October 19, 1957), it will be recalled so that the above awards may be made. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532536. Public record. Not legal advice.