Opinion
No. 2190
May 27, 1941
WORKMEN'S COMPENSATION — ALLOWANCE OF ATTORNEY FEE ON APPEAL — NOT PAYABLE FROM STATE FUNDS — PENALTY FOR VEXATIOUS APPEAL.
1. The amount allowable by statute as fee for compensation claimant's attorneys for services in Supreme Court must be paid by claimant and is not payable out of compensation fund of state (Rev. St. 1931, § 124-128, as amended by Laws 1937, c. 128, § 8). 2. The statute authorizing a fee to be paid to a compensation claimant's attorneys for services performed in Supreme Court contemplates that fee be allowed by the Supreme Court and not by the district court in view of fact that amount allowed depends upon amount of labor and time which has been necessarily and properly expended on the case on appeal (Rev. St. 1931, § 124-128, as amended by Laws 1937, c. 128, § 8). 3. Where the Supreme Court came to conclusion that judgment granting workmen's compensation should be affirmed, only after laborious examination and much hesitation and there was reasonable cause for the appeal taken by employer, counsel for employee was not entitled to recover fee for services in Supreme Court, as a penalty allowed by statute under certain circumstances (Rev St. 1931, § 89-4804). 4. Counsel who represented compensation claimant in the Supreme Court which affirmed judgment awarding compensation was entitled to counsel fee in the sum of $100, payable only by employee and not out of compensation fund of state (Rev. St. 1931, § 124-128, as amended by Laws 1937, c. 128, § 8).
APPEAL from the District Court, Big Horn County; JAMES H. BURGESS, Judge.
In support of the Motion, there was a brief by Milward L. Simpson and V.R. Grundman of Cody.
Petitioners should be allowed attorney fees by the Supreme Court, for the reason that the Compensation Act provides therefor. Section 124-128, R.S. 1931; Christensen v. Sikora, 57 Wyo. 57, 112 P.2d 557. It is the policy of the Compensation Act to conserve awards made for the benefit of the injured employee. The Supreme Court can assess penalties for vexatious appeals. Sec. 89-4809, R.S. No certificate of reasonable cause for the proceeding in error was made in this case, and there was no reasonable cause for the appeal. A reasonable fee for the services rendered on behalf of Walter F. Iles is the sum of $100.00, and such award should be made from the Workmen's Compensation Fund of the State. This court has held that the Workmen's Compensation Law should be liberally construed, so that where reasonable, the industry and not the individual workman should bear the burden of accidents suffered within it.
There was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, oll of Cheyenne, as Amicus Curiae.
This court is authorized to award fees to attorneys appearing for the employee. Sec. 124-128; Laws 1937, Chapter 128, Section 8. This is the first case arising under that statute. However, this court has recognized the principle in the case of Pope v. Safeway Stores, Inc., 54 Wyo. 256 and in Christensen v. Sikora, 57 Wyo. 57. A question arises as to whether the attorney fees should be paid out of the employee's award or from the Industrial Accident Fund. The statute being silent as to whether the fees should be charged against the individual employer's account, the administration account or the miscellaneous expense account, it is apparently necessary for this court to determine the question from the standpoint of policy. In the case of Becker et al. v. Hopper, 22 Wyo. 237, 138 P. 179, this court held that a statute awarding attorney fees in the mechanic's lien foreclosure actions was unconstitutional. And yet, an employer who feels a decision of the District Court to be improper should not be compelled to pay the attorney fees of his opponent. There are objections to the payment of such fees from the Industrial Accident Fund. It would seem improper to direct payment of the fees from the administration fund. We believe that attorneys in compensation cases are entitled to be paid for their services, but the designation of the source from which such payment is to be made seems to be a matter of policy to be determined by this court.
ON MOTION FOR ALLOWANCE OF ATTORNEYS' FEES
In this case an appeal was taken by Big Horn County, Wyoming, from an award to Iles under the compensation laws of this state. The award was affirmed. 110 P.2d 826. Counsel for Iles have filed an application herein asking this court to allow him attorney fee in the sum of $100, payable out of the compensation fund. Not being satisfied that the amount should be paid out of that fund, we directed that a brief be filed herein on the point, and that the county and the attorney general of this state be served with a copy. A brief has been filed herein by the latter, expressing a doubt that the fee should be paid out of the compensation fund.
Prior to 1937, Section 124-128, Rev. St. 1931, provided as follows:
"It shall be unlawful for any person or any number of persons acting together or separately or in any way, including attorneys, agents, interpreters, and all other persons, to receive or agree to receive either directly or indirectly from any beneficiary or beneficiaries under this chapter, for services rendered or to be rendered, either jointly or separately, in relation to procuring any benefit or benefits under this chapter, any sum or sums aggregating more than five per centum of the whole amount received or to be received by such beneficiary or beneficiaries, on account of injuries to any employe, and in no event to exceed fifty dollars ($50.00). Every person violating or concerned in the violation of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00), to which may be added imprisonment in the county jail for a term not exceeding ninety days."
By Section 8, Ch. 128, Session Laws of 1937, the law was amended by inserting after the first clause referring to "fifty dollars ($50.00)" the following: "provided that for services in the supreme court an additional attorneys' fee to be fixed by the court not in excess of one hundred dollars ($100) shall be allowed."
We think the statute is plain. As the law stood before 1937, an attorney of the employee was allowed to charge the sum of fifty dollars, and no more. That sum was to be paid by the employee, and not out of the compensation fund of the state, and we think the constant practice in this state has been in conformity therewith. The amendment of 1937 permits an additional amount of $100, for services in this court. The term additional could only refer to the fifty dollars previously allowed, and patently has reference to the same source from which the latter sum is payable. And since the amount to be allowed evidently depends upon the amount of labor and time which the court thinks has been necessarily and properly expended on the case on appeal, the statute appears to contemplate that the amount, or so much thereof as is deemed proper, shall be allowed by the supreme and not by the district court.
Counsel for Iles further claims that he should be allowed the sum asked as a penalty under Section 89-4804, Rev. St. 1931, which, in substance, allows the court to assess a penalty when it is apparent that an appeal was not justified. We entered an order herein at the time of the affirmance of the judgment of the trial court, as contemplated by the statute last cited, that there was reasonable cause for the appeal taken by the county. An examination of the opinion written in this case will clearly show that the order was justified. It was only after laborious examination and much hesitation that the court came to the conclusion that the judgment below should be affirmed.
An order will, accordingly, be entered herein, allowing counsel the sum of one hundred dollars, in accordance with the statute, payable, however, only by the employee, and not out of the compensation fund of the state.
RINER, Ch. J., and KIMBALL, J., concur.