Graves v. State Industrial Accident Commission , 112 Or. 143 ( 1924 )

BURNETT, J.

We are informed by the record tbat an injury happened to the claimant on May 8, 1922, while in the service of an employer subject, the same as he was at the time, to the operation of the workman’s compensation law. On July 7th, the Industrial Accident Commission considered his claim, found that he was entitled to payment as compensation in the sum of $119.07, that he had been paid $86.19, and allowed him a balance of $32.88 “in full settlement for any and all claims arising out of such injury as above listed on the records of the State Industrial Accident Commission.”

The accident happened in Multnomah County and after the allowance of July 7, 1922, the claimant took up his residence in Marion County. Later on, it seems, although there is no written application in the record, that he applied to the commission for additional compensation. That body reopened his case on March 8, 1923, and made an additional allowance and, after deducting payments already made, arrived at a balance allowed to him in the sum of $235.83 stating as before that it was made in full settlement of any and all claims arising out of such injury. It forwarded to the claimant a statement of its decision attached to which was a check for the balance last named. The claimant detached the check and cashed it; and afterwards, on March 16th, gave notice of appeal to the Circuit Court of Multnomah County although at the time he resided in Marion County.

On April 23, 1923, the cause was tried before a jury which rendered a special verdict in favor of the claimant. At the hearing the state, through the Attorney General, moved to dismiss the appeal on the grounds, among others, “1. That said court is without jurisdiction herein by virtue of the nonresidence of the said claimant in Multnomah County; 2. That the acceptance of the award of the commission in its final action is the renunciation of the right to appeal therefrom.” The motion was denied and judgment was entered remanding the case to the commission for payment of additional compensation; hence the present appeal.

Section 6637, Or. L., as amended by the act of February 26, 1921, Laws 1921, Chap. 311, § 10, reads in part as follows:

“The commission shall have full power and authority to hear and determine all questions within its jurisdiction but any beneficiary not satisfied with the decisión or finding's of said commission may, within 60 days after notice of the final action of such commission, appeal to the circuit court of the state of Oregon for the County in which such claimant resides. ’ ’

The right to reopen the claim and allow additional compensation or to rearrange same depends upon the following excerpts from § 6632, Or. L.

“(c) If change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor * * ”

“(e) The power and jurisdiction of the commission shall be continuing and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as in its opinion may be justified.”

As determined in Chebot v. State Industrial Acc. Com., 106 Or. 660 (212 Pac. 792), the proceeding for additional compensation depends upon whether or not an original application had been filed within three months after the date on which the injury occurred upon which an allowance had been made. Nevertheless, it is a proceeding with a distinction and individuality all its own from a decision in which an independent appeal may be taken to the Circuit Court of the county in which «the claimant resides. The selection of the appellate tribunal in this new and distinct proceeding, supplemental though it may be, in a sense, to the original, is controlled by the place in which the claimant resides at the time he appeals. Out of the mouth of the claimant himself, while testifying as a witness, comes the statement that he resides in Marion County and was residing there at the time he took the present appeal. The plain reading of the statute delineates the measure of his right to appeal and, it being a statutory proceeding, he must conform to the directions thereof in order to give the appellate tribunal jurisdiction of his cause. The Circuit Court of Multnomah County clearly was without jurisdiction to hear his appeal and should have dismissed the same.

More important, however, is the proposition that having accepted the award made in pursuance of the decision of the commission after an additional and supplementary hearing allowing him a balance of $235.83 as stated, “in full settlement for any and all claims arising out of such injury,” by cashing the check sent him in payment thereof, he cannot appeal from’ that decision. (The design of the legislation creating an Industrial Accident Commission and describing its functions was to take from the courts the decision of various and vexing questions arising out of injuries to workmen, incurred in employment. In fact, a new and special tribunal was established for the decision and adjustment of such cases. Written large throughout the act creating the commission are indications that it is vested with at least gwsi-judicial powers. An illustration is found in the languag-e of Section 6632 already quoted about the continuing “power and jurisdiction of the commission.” Again we find in Section 6637 language ascribing to the commission “full power and authority to hear and determine all questions within its jurisdiction” and giving to a dissatisfied claimant the right to appeal to the Circuit Court of the county of his residence. If these decisions are not judicial in their nature and so intended to be by the legislative power, it is not likely that their consideration on appeal would have been vested in such purely judicial bodies as Circuit Courts. By the same section, the court reviews the decision of the question as it would in any other judicial determination of a question at issue between parties. It is clear, therefore, that the decision of the commission, being expressly appealable, is subject to the general rules of law relating to appeals where applicable.

As settling this question of whether one can accept the benefits of a judgment or judicial determination of a question, and at the same time appeal therefrom, it is enough to quote what was written by the late Mr. Justice Benson in Portland v. Schmid, 82 Or. 465, 467 (161 Pac. 560):

“It may be said at the outset that it is so well established as to be regarded as elementary law that a litigant cannot accept the benefits of an adjudication and afterward appeal therefrom. Practically every state in the Union has so held, and the doctrine is sustained in this state in Moore v. Floyd, 4 Or. 260; Portland Cons. Co. v. O’Neil, 24 Or. 54 (32 Pac. 764); Bush v. Mitchell, 28 Or. 92 (41 Pac. 155); Moores v. Moores, 36 Or. 261 (59 Pac. 327); Roots v. Boring Junction Lumber Co., 50 Or. 298 (92 Pac. 811, 94 Pac. 182); Oregon Elec. Ry. v. Terwilliger L. Co., 51 Or. 107 (93 Pac. 334, 930); Kellogg v. Smith, 70 Or. 449 (142 Pac. 330).”

The claimant has cited several cases to the effect that one to whom money is due may accept from his debtor an amount which the latter says is all that is due and yet sue for the balance. It is not necessary to go into an inquiry on such matters for they do not apply to the present contention. It is not apparent_ from the record how much, if anything, the claimant demanded from the commission. All we find therein-is that, being dissatisfied with the decision, he appealed. Again, the commission did not owe him anything. That body will be neither richer nor poorer; neither will the assets of any member of the commission be increased or diminished by the result of the decision. It is not a question between debtor and creditor. It is purely a question of tbe claimant appealing from tbe decision of a tribunal wbicb is not satisfactory to bim. Tbe case presented is not one in wbicb tbe court can say that as of course tbe. defendant is entitled to tbe amount allowed at all events with possibility of a greater allowance dependent upon whether tbe case should be reversed. Having accepted tbe amount adjudicated in bis favor, thus availing himself of tbe benefits of tbe decision, be cannot prosecute an appeal for tbe purpose of overturning it.

On both grounds, therefore, tbe judgment should have gone against tbe claimant for be bad appealed to tbe wrong Circuit Court and be bad undertaken to appeal from a judgment, tbe fruits of wbicb be bad appropriated. Tbe judgment of tbe Circuit Court is reversed.

Reversed. Former Judgment Annulled and Appeal Dismissed.