provide, to receive such compensation or to recover damages against such third person.
'(g) If a compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to under this chapter, the employer shall be liable for compensation * * * only if such compromise is made with his written approval.'
Plaintiff argues that the above section applies because Nancy (the other woman) brought a third-party action as Administratrix of the Estate of George Smith and then compromised that claim without plaintiff's written approval. Plaintiff progresses to the contention that Anna is estopped to deny that she is bound by that compromise because she, Anna, is the person entitled to receive the proceeds of the estate; because she did not challenge Nancy's right to act as Administratrix; and did not intervene in the third-party action.
It would appear that the plaintiff's use of the term estoppel invokes the underlying equitable jurisdiction of this Court. Cf. Bateman v. Ford Motor Company, 302 F.2d 63 (3rd Cir. 1962). In that respect, however, it does not appear that the equities are on plaintiff's side. There is, for instance, no showing that Anna could have prevented the present situation. Plaintiff Lavino, however, was aware of the third-party action, since it had been joined therein and filed answer as third-party defendant. Commissioner's Exhibit 3, N.T. 215-20. Under the Act, plaintiff could have made payment of the Deputy Commissioner's order of April 15, 1958, which would have effected an assignment to it of the claim, and placed itself in control of the third-party action, under either of two provisions: 33 U.S.C.A. § 933(b) or (c).
As stated, it seems inequitable and unfair to try to bind the claimant by a third-party proceeding to which she was a stranger. Moreover, before plaintiff Lavino could be heard to say that Anna is to be penalized for failing to intervene in those proceedings, Lavino would first have had to justify its own lack of action to protect its own rights.
The remaining question concerns counsel fees. The Deputy Commissioner's supplemental order of August 9, 1961 fixed claimant's counsel fee at
'* * * $ 700.00 including formal hearings had on September 17, 1957 and December 9, 1960, but not including payment for services rendered in connection with the appeal filed in the said case with the U.S. Court of Appeals * * *.'
That award is supported by the record, and is adjudged to be reasonable. It is therefore confirmed.
Counsel for the claimant, Anna, now further requests that if the complaint is dismissed, his counsel fee be fixed under the provisions of paragraph 28(a) of the Act. 33 U.S.C.A. § 928(a). He asks compensation for 88 hours spent in the preparation of pleadings, briefs, and in argument in connection with the first appeal to this Court in which a Petition to Intervene and an answer were prepared and filed; for a brief filed thereafter and for oral argument in that case; for work in connection with the appeal to the Circuit Court of Appeals; and for the present proceedings before this Court which included the preparation 7of a brief.
He further asks for an allowance to cover the following sums advanced for costs:
Affidavits $ 1.00
Cab Fare 2.00
Marriage certificate 1.00
Notes of testimony 76.20
Filing appeal 5.00
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