Summary
In Oden Construction Co. v. Tyler, 247 Miss. 21, 153 So.2d 294 (1963), the claimant died while his case was on appeal. Since attorney fees were allowed only upon the final award of compensation benefits, and since the finality of an award was suspended during the pendency of appellate proceedings, the fees awarded were based upon the amount actually received by the worker.
Summary of this case from Davis v. Homestake Min. Co.Opinion
No. 42683.
May 20, 1963.
1. Workmen's compensation — attorney's fee — where successful claimant dies pending suggestion of error, attorney's fee is figured upon amount accrued and due at time of claimant's death.
Attorney's fee in compensation case must be figured as percentage of that amount of installments with interest and damages that had accrued at death of claimant who died while suggestion of error was pending before the Supreme Court and not upon full amount of award in decision of Supreme Court. Sec. 6998-32(c), Code 1942.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Forrest County; STANTON A. HALL, Judge.
Dudley W. Conner, Hattiesburg, for appellants.
I. The Circuit Court erred in rendering a judgment for attorneys' fees for services performed for the claimant, based on compensation to become due had the claimant lived, without the Commission having approved, prior to claimant's death, a partial lump sum settlement sufficient to cover the attorneys' fees as provided by statute. Christian Craft Co. v. Dantzler Lumber Co., 78 Miss. 74, 28 So. 788; Gulf Refining Co. v. Harrison, 201 Miss. 294, 28 So.2d 221; Jim Nix Cafeteria v. Burton, 226 Miss. 206, 84 So.2d 164; L.B. Priester Son v. McGee, 234 Miss. 471, 106 So.2d 394; McKey v. Torry, 28 Miss. 78; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300, 63 So.2d 164; Streeter v. Chicago Title Trust Co., 14 F.2d 331; Tyler v. Oden Construction Co., 241 Miss. 270, 130 So.2d 552; Secs. 1459, 6998-32, Code 1942; 30 Am. Jur., Judgments, Sec. 38 p. 838; 30A Am. Jur., Judgments, 221; Annos. 3 A.L.R. 1403, 68 A.L.R. 261; 49 C.J.S., Judgments, 251.
Robert E. Arrington, Robert M. Sullivan, Hattiesburg, for appellee.
I. Cited and discussed the following authorities: American Surety Co. of New York v. Boykin, 213 Miss. 310, 54 So.2d 398; Jim Nix Cafeteria v. Burton, 226 Miss. 206, 84 So.2d 164; L.B. Priester Son v. McGee, 234 Miss. 471, 106 So.2d 164; Sec. 6998-32c, Code 1942.
When a workmen's compensation case has been appealed to this Court, the case decided by this Court allowing compensation, and then the claimant dies while a suggestion of error is pending before this Court, is the attorney's fee figured upon the full amount of the award in the decision of this Court, or is it figured upon the amount accrued and due at the time of death of the claimant? As we see it, the question has already been answered by this Court, and the fee would have to be figured as a percentage of that amount of installments with interest and damages that have accrued at the time of the claimant's death. The Circuit Court of Forrest County held, on a motion to commute the attorney's fee, that it should be figured on the full benefits which this Court had allowed claimant. The appeal here is from that order of the circuit court.
Sec. 6998-32, Code of 1942, is the section of the workmen's compensation act dealing with attorney's fees. In the first section thereof it is provided: "Any claim so approved shall, in the manner and to the extent fixed by the commission or such court, be a lien upon such compensation." The second paragraph of sub-section (c) of said section, among other things, provides: "In all instances, fees shall be awarded on the basis of fairness to both attorney and client." This second paragraph of subsection (c) also provides that ". . . it shall be deemed conducive to the best interest of all concerned for the commission to approve contracts for attorney fees voluntarily entered into between attorney and client, within the limitations hereinabove set out." A reading of this section discloses that the attorney's fee is actually due from the claimant to the attorney but is secured by a lien on the compensation award. The attorney's fee is derivative from those amounts allowed to the claimant.
The last paragraph of the section aforesaid provides: "When an award of compensation becomes final, and an attorney fee is outstanding, a partial lump sum settlement sufficient to cover the attorney fee approved therein by the commission shall be made immediately, from payments last to become due, and the deductions allowed by the law shall be borne equally by the attorney and the client." This last paragraph was applied in the cases of American Surety Co. of N.Y. v. Boykin, 212 Miss. 310, 54 So.2d 398, and Jim Nix Cafeteria v. Burton, 226 Miss. 206, 84 So.2d 164. However, the claimant was not dead in either of those cases and the award was final and outstanding.
The facts in the instant case were that this Court rendered its decision on May 22, 1961 ( 130 So.2d 552); a suggestion of error was timely filed and the claimant died on June 10, 1961, while the suggestion of error was still pending before this Court.
The question is was the award by this Court final, or what was the effect of the filing of the suggestion of error and its pendency at the time of the death of the claimant? In Burton v. Redmond, 220 Miss. 704, 71 So.2d 772, this Court said: "The filing of the suggestion of error on April 13, 1951, suspended the operation of a judgment rendered by this Court on March 15, 1951, until the suggestion of error was disposed of. The suggestion of error was disposed of on May 7, 1951. It was at that time that the judgment of this Court became final."
In M.T. Reed Construction Co. v. Martin, 215 Miss. 478, 63 So.2d 528, this Court said that an award for disability was ". . . . an award which terminates upon his death, a contingency indeterminate in point of time." In that case, the Court also quoted with approval from Vol. 2, Larson's Workmen's Compensation Law, pp. 51-53:
"In the opening portion of the book, it was pointed out that one of the features distinguishing a compensation award from a tort recovery is the absence of any property right in an award which can survive in favor of heirs. The problem most frequently arises in connection with schedule or other permanent partial awards, when an employee who has been awarded, say, 312 weeks' benefits for loss of an arm dies at the end of 12 weeks. In the absence of a special statute to the contrary, it has been held in most jurisdictions that his heirs have no claim upon the unaccrued 300 weeks' payments, since the award is a personal one, based upon the employee's need for a substitute for his lost wages and earning capacity."
We turn now to the case of L.B. Priester Son v. McGee, 234 Miss. 471, 106 So.2d 394, where Judge Lee, at page 398 of the Southern Reporter, said:
"McGee died on March 12, 1958, after 62-4/7 weeks of total temporary and permanent partial benefits of $25 per week or a total of $1,514.30, had accrued and were due and payable. The cause has been revived in the names of his heirs at law, who are entitled to collect the aforegoing amount, plus interest and damages, but no more under this award. M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300, 63 So.2d 528.
"The question of an attorney's fee is also raised. The appellee contends that the attorney is entitled to 1/3 of the original award for 450 weeks. He cites American Surety Co. of N.Y. v. Boykin, 212 Miss. 310, 54 So.2d 309, and Jim Nix Cafeteria v. Burton, 226 Miss. 206, 84 So.2d 164, but, in those cases, both of the claimants were alive at the time of the entry of the final order of award.
"The last paragraph of Sec. 6998-32, Code of 1942, Rec., provides as follows: `When an award of compensation becomes final, and an attorney fee is outstanding, a partial lump sum settlement sufficient to cover the attorney fee approved therein by the commission shall be made immediately, from payments last to become due, and the deductions allowed by law shall be borne equally by the attorney and the client.'
"Successive appeals were taken from the order of the attorney-referee, the commission and the circuit court. Consequently the payment of the award has been held in abeyance. Now that the Court is affirming the award, it appears that the claimant is dead. Consequently the Court can award as an attorney's fee, only 1/3 of the amount of the award which had accrued prior to the death of McGee, namely, 1/3 of the $1,514.30 plus interest from the due date of each payment and plus 5 per cent damages; and that will be the order thereon."
(Hn 1) We consider the Priester case decisive of this case. The appellant has paid to the estate of the claimant the amount of the accrued installments due to the time of claimant's death, and from this amount the attorneys for the claimant are entitled to 1/3, which the record seems to indicate they have received.
The case is therefore reversed and judgment entered here for appellants.
Reversed and judgment here for appellants.
McGehee, C.J., Ethridge, Gillespie and McElroy, JJ., concur.