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Wells v. Mix

July 19, 1973

WELLS, APPELLANT,
v.
MIX, RESPONDENT



Appeal from Circuit Court, Benton County. Eugene K. Richardson, Judge.

William A. Mansfield, Medford, argued the cause for appellant. With him on the brief was Leonard J. Keene, Medford.

George A. Rhoten, Salem, argued the cause for respondent. On the brief were Gary G. Jones and Rhoten, Rhoten & Speerstra, Salem.

Howell, Justice. McAllister, Presiding Justice, and Denecke, Holman, Tongue and Bryson, Justices.

Howell

Plaintiff filed this action for malpractice against his former attorney, who had represented him in an action for personal injuries under the Employers' Liability Law, ORS 654.305 to 654.335. The action, tried before the court without a jury, resulted in a judgment for defendant, and plaintiff appeals.

The facts are important. On September 22, 1965, the plaintiff sustained an industrial accident while in the employ of Evans Products Company. On October 5, 1965, while the plaintiff was in a hospital being treated for his injuries, he signed a compensation agreement and covenant not to sue. The agreement provided that plaintiff would receive compensation at a rate established by the Oregon Workmen's

Compensation Law. In consideration thereof he agreed not to bring an action against his employer. Pursuant to the agreement, the plaintiff received payments of $290 per month plus compensation for various medical expenses.

In July, 1966, the defendant attorney in the instant case was appointed counsel for the plaintiff in a criminal proceeding pending against plaintiff in the circuit court for Benton County. During the course of defendant's employment the plaintiff and defendant discussed the possibility of plaintiff having a claim against his former employer, Evans Products Co. In the meantime plaintiff continued to accept payments under the compensation agreement.

In October, 1966, the plaintiff filed an action under the Employers' Liability Law against Evans Products Co. The latter denied liability and alleged that plaintiff "with knowledge" of the compensation agreement had accepted benefits of $7,500 and therefore ratified the agreement. The plaintiff's reply alleged that the compensation agreement was executed while plaintiff was under the influence of drugs and medication and plaintiff was therefore "incompetent" to understand the agreement.

The action was tried before a jury and a substantial verdict rendered in favor of plaintiff. The defendant Evans Products appealed. Wells v. Evans Products Co., 252 Or 17, 446 P2d 108 (1968). This court found it unnecessary to pass upon the validity of the compensation agreement because the plaintiff, by his acceptance of benefits after he had retained an attorney and after he had filed his action, had ratified the compensation agreement as a matter of law.

Subsequently the plaintiff filed this ...


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