raise the question whether the questions of law involved are so doubtful as to require the filing of briefs; and if, upon the resulting hearing, the court is fully satisfied that no grounds for a reversal exist, an affirmance will be ordered. 10 An injured employé brought an action asking in the first count for compensation for his injury under the Workmen's Compensation Law, and in the second count for damages for pain and suffering and for disfigurement of his hand proceeding from the same injury, and which resulted from the negligence of the defendant. The court overruled a demurrer to each count of the petition, and refused to require the plaintiff to elect on which count he would rely, and directed the parties to proceed to trial on the count for damages, reserving the count for compensation for future consideration. The jury were instructed to consider the case as one based upon a common-law liability for a negligent injury, and a verdict was rendered awarding damages for pain and suffering and disfigurement. The Supreme Court held that while there was some evidence tending to show partial disability, and some testimony as to the recent earnings of the plaintiff, the verdict rendered could not be treated as an award of compensation, and that no judgment could be entered in the Supreme Court for any sum as compensation.11 A showing that a requirement of a judgment that compensation be paid under the New Jersey Act on a particular day of the week will result in inconvenience or trouble to the defendant will not require a reversal or modification of the judgment; the defendant's remedy being by an application to the trial court.12 10 Cain v. National Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251. 11 McRoberts v. National Zinc., 93 Kan. 364, 144 Pac. 247. 12 Conners v. Public Service Electric Co. (1916, N. J.) 97 Atl. 792. ARTICLE VIII COSTS AND ATTORNEY'S FEES Section 251. Taxation of costs. 252. Contract for fee. § 251. Taxation of costs The allowance of attorney's fees is not authorized by the Minnesota Act, but the court may allow statutory costs, although designated in the order as attorney's fees.13 Where it cannot be said that an appeal prosecuted by the insurer was prosecuted without any reasonable ground, "the whole cost of the proceedings" should not be charged upon the insurer, under the Massachusetts Act.14 The provision of the New Jersey statute that "the judge of the court of common pleas shall determine the amount of compensa * tion to be paid by the employé or his dependents to his legal adviser," and that "the judge shall determine the amount to be paid per week from the compensation payment on account of the legal fee thus awarded," it is contemplated that the attorney's fee be paid from the award.15 On an appeal, under the Washington Act, from an allowance for an employé's death, the Supreme Court cannot increase the attorney's fee allowed in the superior court.16 No costs can be recovered in an action against a city of the second class for compensation under the Kansas Act, where no claim has been presented as required by the General Statutes of that state.17 In a recent case the Court of Appeals of New York states that it 13 State ex rel. Diamond Drilling Co. v. District Court, 129 Minn. 423, 152 N. W. 838. 14 In re Meley, 219 Mass. 136, 106 N. E. 559. 15 Diskon v. Bubb, 88 N. J. Law, 513, 96 Atl. 660. 18 (Sess. Laws 1911, c. 54, § 20) Boyd v. Pratt, 72 Wash. 306, 130 Pac. 371. 17 Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167. regards section 24 of the Act of that state as mandatory, and that costs will be awarded "against a party to an appeal under the act whenever we determine that the proceeding has not been brought upon reasonable ground. Such cases, however, are exceptional. In cases involving no element of unreasonableness, the award of costs is left by section 23 of the statute to the discretion of the court: and ordinarily in the exercise of that discretion costs will not be awarded against an unsuccessful claimant personally, but will be charged against the State Industrial Commission, which virtually represents such claimant through the Attorney General." On an unsuccessful appeal by the employer or insurer from an order of the Appellate Division affirming an award of the Commission, the alfirming order made by the Court of Appeals should, under cr nary circumstances, be made with costs, the same as is usually done on an affirmance of a final order in a special proceeding." 18 In California, where no meritorious defense is offered at the hearing, and the payment of compensation has been unreasona delayed, costs will be allowed to the applicant in the discretion of the Commission.20 The Commission has stated that, when the Act becomes better known to employers and their attorneys, it wi be the policy of the Commission to tax the costs of hearings against the defendant in cases where practically no evidence is introduce! by him in substantiation of the defenses raised.21 18 (Consol. Laws, c. 67, §§ 23, 24) Wilson v. C. Dorflinger & Sons (N. I. 113 N. E. 454, amending remittitur on appeal from an order (170 App. I 119, 155 N. Y. Supp. 857) affirming an award of the Commission, which w reversed (218 N. Y. 84, 112 N. E. 567). 19 (Consol. Laws, c. 67, § 23) In re Petrie, In re Oneida Steel Pulley C (N. Y.) 113 N. E. 455. 20 Yamasaki v. Commonwealth Bonding & Casualty Insur. Co., 1 Cal. L. A C. Dec. 658. But in Farmer v. Barber, 3 Cal. I. A. C. Dec. 21, where the application W. without merit and was known by the applicant to be so, costs incurred t. the defendant, amounting to $21.50, were assessed to the applicant. 21 Oaks v. Berkeley Steel Co., 1 Cal. I. A. C. Dec. 218. § 252. Contract for fee Unless a contract for an attorney's fee is reasonable, it will not be approved or enforced. A contract providing that an attorney shall receive 50 per cent. of the compensation has been held unreasonable.22 The California Commission refused to approve an agreement between the injured employé and the attorney employed by him that the latter should receive as compensation for his services 20 per cent. of any compensation awarded, subject to the approval of the Industrial Accident Commission, stating that the compensation allowed by the Act was not in excess of the needs of the injured persons or their dependents, and that it would be the policy of the Commission to save to such persons, as nearly as possible, the entire compensation payable. A fee of $20 was determined to be reasonable, and a lien given upon the amount awarded applicant to that extent.23 22 Oleskie v. Dodge Bros., Mich. Wk. Comp. Cases (1916) 45. 28 Keatley v. Shields & Son, 1 Cal. I. A. C. Dec. 191. Section CHAPTER IX ILLUSTRATIVE SELECTED FORMS 253. Forms for illustration and reference. 254. Notices-Acceptance, rejection, and withdrawal. 255. Notices to be posted, and certificate. 256. Notice of injury or claim. 257. First report of accident. 258. Employer's reports. 259. Agreements. 260. Application for adjustment of claim-Settlement and petition. 261. Answer to application. 262. Notice of hearing. Arbitration. Attending physician's certificate. Proof of death, and certificate authorizing burial. 263. 264. 265. 266. 267. Petition for review. $253. Forms for illustration and reference The following forms are given by way of illustration and for reference in connection with the propositions hereinbefore discussed and involved in the cases cited. They cover the common essentials of the principal forms prescribed by the officers vested with the power of administering the various Acts, or by the Acts themselves. Though scarcely any two of the forms prescribed and in use under the various Acts are identical in the language used, they differ, as a rule, only in minor details. Publication of all these forms would require several hundred pages and serve no useful purpose, in view of the fact that those forms needed in each state may be readily procured, generally free of charge, on application to the proper administrative officers. |