PER CURIAM.
This is a workmen's compensation case arising out of the following factual situation: H.L. Perrin was employed by the Tanner Grocery Company and worked one day and on the second day, October 24, 1947, was injured when a lady checker dropped a can of grapefruit juice on his hand and as a result of the injury he was disabled for a period of three weeks and four days. The service performed by the claimant was for part time employment as he worked on Friday and was injured on Saturday morning and he was paid $12 for two days' work, or $6 per day. The position at which the claimant was injured when working for his employer paid the sum of $22.50 per week. The claimant worked only for two days, along with three boys, who were paid on this basis for a full week's work. There is no dispute about the claimant being injured in the course of his employment.
The Deputy Commissioner, after hearing the testimony, awarded compensation at the rate of $8 per week for three weeks' temporary total disability. On review the order of the Deputy Commissioner, on June 23, 1948, was affirmed by the Florida Industrial Commission but so modified as to allow the claimant a reasonable attorney's fee in the sum of $25. The order of affirmance as entered by the Florida Industrial Commission under date of June 23, 1948, was on appeal affirmed by the Circuit Court of Dade County. An appeal therefrom has been perfected here.
The sole question presented here is the rate of claimant's compensation as a part time employee. The answer to the question is found in Subsection (3) of Sec. 440.14, F.S.A. It provides viz.: "If either of the foregoing methods cannot reasonably and fairly be applied the full time weekly wage of the injured employee shall be used". An examination of Subsections (1), (2), (4) and (5) discloses that they are inapplicable to the facts involved in this controversy, but Subsection (3) thereof is controlling. It is our conclusion that the compensation of the claimant is compensable on a full time weekly basis amounting to the sum of $36.
The approved practice obtaining in this Court for awarding attorney fees in compensation cases is usually on an appropriate motion filed in the cause; the request should be separated from an assertion of the claimant as was done in the reply brief of the claimant in this cause. It is our view that the sum of $150 is a reasonable fee to be allowed claimant's attorney in this Court.
The order of the lower court is reversed with directions to enter an appropriate order in conformity with the views herein expressed and awarding a reasonable sum as counsel fees in the Circuit Court. It is so ordered.
ADAMS, C.J., and TERRELL, CHAPMAN, HOBSON and ROBERTS, JJ., concur.
THOMAS, J., and TILLMAN, Associate Justice, dissents.
TILLMAN, Associate Justice (dissenting).
This is an appeal from the Circuit Court of Dade County, Florida, on the case originating before the Florida Industrial Commission in which the Deputy Commissioner, the Honorable John C. Wynn, held against the contention of the appellant, which holding was affirmed by the full commission and on the appeal from the decision of the full commission, the Circuit Judges of Dade County affirmed the commission.
The appellant here, H.L. Perrin, was injured while in the employ of the appellee, his injury occurring on the second day that he worked. The claimant was employed on a part time basis and his employment was for two days out of the week, for which he was to be paid at the rate of $6 per day. The only question involved from the standpoint of the claimant is whether or not the Industrial Commission was correct under the Workmen's Compensation Law in compensating the claimant on the basis of wages of $12 per week, or whether the basis should have been the same for him as it would have been for a full time employee who, of course, would have made $36 a week.
The briefs of both parties were full and complete, but the cases cited for the appellant do not convince us that the order appealed from was not the correct solution of the case. No case from Florida was cited to us in the briefs, nor have we been able to find any Florida case that throws any light upon the question at issue. It is shown from the record that paragraphs 1 and 2 of Sec. 440.14, F.S.A. are not applicable.
We do not think there is any doubt that under paragraph 3, the basis of payment should be the full time wage of the injured employee. If he is a full time employee, we do not think that the language of the Act should be construed to support the contention of the claimant that he is entitled to more compensation than he would have received in wages had he worked.
Very much like our act are the New York Workmen's Compensation Law, Consol. Laws, c. 67, and Longshoremen and Harbor Worker's Act, 33 U.S.C.A. § 901 et seq. The following decisions sustain the view of this case, which was taken in the court below and which we take: Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802; Hartford Accident and Indemnity Co. v. Hoage, 66 App.D.C. 154, 85 F.2d 411; Baltimore Ohio R. Co. v. Clark, 4 Cir., 59 F.2d 595; Andrew F. Mahony Co. v. Marshall, D.C., 46 F.2d 539.
The second question raises the amount of the attorney's fee allowed the attorney for the claim. We do not doubt that the attorney earned a larger fee than the $25 allowed, but we do not believe that it should be taxed against the employer in view of the fact that the result of the litigation being contrary to the contention advanced by the employee, and in favor of the employer would justify such action on our part.
THOMAS, J., concurs.