State Ex Rel. Nilsen v. Adams

ON PETITIONS FOR REHEARING

*278 Willis, Kyle, Emmons & Kropp, Albany, for appellant’s petition.

Robert Y. Thornton, Attorney General, H. J. Belton Hamilton, Thomas N. Trotta, G. Dwyer Wilson, Albert Menashe, Dale W. Conn, Assistant Attorneys General, Salem; Victor Levy, Assistant Attorney General, Portland, for respondent’s petition.

Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices.

HOLMAN, J.

Plaintiff filed a petition for rehearing contending that in limiting the recovery for penalty wages to $17.50, the court erroneously relied upon language from McGinnis et al v. Keen, 189 Or 445, 454 , 221 P2d 907 (1950), which has been overruled by Nordling v. Johnston, 205 Or 315 , 283 P2d 994 , 287 P2d 420 (1955).

We concede that we were in error in relying in our original opinion upon McGinnis and we withdraw *279 that part of the opinion which relates to penalty wages. It was not the court’s intention to overrule or discredit Nordling . However, this does not mean the plaintiff is entitled to penalty wages. Nordling states that the statute provides for the continuance of the workman’s compensation at the same rate at which he was being paid while working. Plaintiff alleged Dlouhy’s employment terminated December 10,1964. The last work and wages disclosed by the testimony and exhibits is seven hours truck repair at $2.50 per hour on November 10. There is no evidence of the nature of Dlouhy’s work or compensation during the 29 days prior to the time plaintiff alleges Dlouhy was discharged. Therefore, there is inadequate evidence of his rate of pay at the time of discharge. It is even doubtful that $17.50 was representative of his daily rate of pay at the time it was earned. He had been primarily employed as a truck driver and was employed in the repair of the truck he drove only as necessity demanded. Plaintiff is not entitled to recover for Dlouhy’s penalty wages because there is no evidence from which his rate of pay at the time of his discharge can be computed. As a result the original opinion must be modified to delete from plaintiff’s judgment the $17.50 allowed as penalty wages.

Defendant has also pointed an accusing finger at the court’s original opinion. He has filed a petition for rehearing claiming that that part of the opinion was in error which remanded the case back to the trial court for the purpose of allowing evidence on the matter of attorney’s fees to be introduced and considered. The plaintiff did not allege in the body of his complaint that he was entitled to attorney’s fees nor did he there allege any amount as being reasonable. He only requested attorneys fees in his prayer. Neither did he *280 offer any proof at trial of reasonable attorney’s fees. Defendant claims that under these circumstances the court had no power to allow any attorney’s fees.

Defendant’s position is as follows:

“* * * The ruling being sought is a ruling which will spell out whether or not in such cases the matter of fixing attorney’s fees is entirely a matter for consideration as an item of the cost bill or whether the matter of attorney’s fees must be dealt with in some manner during the trial itself.” (Emphasis theirs).

In behalf of defendant’s position he cites State High. Com. et al v. Kendrick et al, 227 Or 608 , 363 P2d 1078 (1961), and State v. Ganong, 93 Or 440 , 184 P 233 (1919), and cases cited therein.

In Qanong the court was considering the following statutory language in a state highway condemnation ease:

“* * * the costs and disbursements of the defendant, including a reasonable attorney’s fee to be fixed by the court at the trial shall be taxed by the clerk and recovered from the corporation.”

This court there held that:

“* * * The statute contemplates that the amount of the attorney’s fee must be (1) alleged; (2) proved by evidence; and (3) tried by a jury if the other facts are tried by a jury.”

Kendrick was a state highway condemnation case in which the defendant received a verdict in excess of the amount offered for the property and in a hearing after jury verdict, the court set the attorney’s fees. On appeal the fees were claimed to have been excessive. The court held that there was evidence to sustain *281 the court’s findings as to the amount of attorney’s fees and, it being a law ease, the court could not change the amount of the allowance on appeal. The language of the statute at that time was as follows:

“The costs and disbursement of the defendants, including a reasonable attorney’s fee to be fixed by the court, shall be taxed by the clerk and recovered from the state; * *

In a general discussion of the law the following language is found in Kendrick at pp 610-611:

“It has long been settled in Oregon that the amount of the attorney’s fee to be allowed in an action at law is a question of fact to be determined by the trier of fact upon pleading and evidence in the same manner as any other question of fact. The rule is applicable whether the attorney’s fee is allowed by statute (citing cases, including State v. Ganong, supra) or by contract; (citing cases).

“The same rule applies in equity suits, (citing cases).

“The only exception to the rule, either in law or in equity, is when the parties stipulate that the court may fix the attorney’s fee without hearing evidence on that issue. (Citing cases, again including State v. Ganong, supra).”

Two of the principal grounds upon which Ganong was decided were the inclusion in the statute of the words “at the trial” and the use of the word “court” rather than “judge.” The statute in the present case does not have the language “at the trial” and has used the words “court or judge” instead of “court.” In Kendrick the court recognized that since the language of the condemnation statute was changed in 1947, by the deletion of the words “at the trial,” it had been the uniform practice for the judge to fix the attorney’s fees.

*282 Under a statute such as the present one, where attorney’s fees are made a part of costs, the allowance of such fees is entirely a matter for consideration -as an item of the cost bill. It is apparent that the drafters of the statute had Ganong in mind because of the deletion and addition previously mentioned. Attorney’s fees were intended to be set by the judge from evidence given at a hearing on the cost bill subsequent to trial. There is no other explanation of the failure to include the words “at the trial” in the statute. Attorney’s fees are of no possible interest to the jury and would only tend to confuse if allegations concerning them were included in the complaint. Under a statute like the one here we see no reason why the right to, and the reasonableness of attorney’s fees should be alleged in the complaint any more than any other item of costs. The plaintiff requested attorney’s fees in his prayer and this was sufficient.

Both petitions for rehearing are denied.