Bergan v. Gallatin Val. Mill. Co.

• Decision Date: 16 August 1960
• Docket Number: No. 10075,10075
• Citation: 353 P.2d 320,138 Mont. 27
• Court: Montana Supreme Court
• Parties: Ora DeEtte BERGAN, Oscar Bergan, fatal, Claimant and Appellant, v. GALLATIN VALLEY MILLING COMPANY, Employer and Respondent, and Aetna Casualty & Surety Company, Defendant and Respondent.

Page 320

353 P.2d 320

138 Mont. 27

Ora DeEtte BERGAN, Oscar Bergan, fatal, Claimant and Appellant, v. GALLATIN VALLEY MILLING COMPANY, Employer and Respondent and Aetna Casualty & Surety Company, Defendant and Respondent.

No. 10075.

Supreme Court of Montana.

Submitted Jan. 15, 1960.

Decided May 6, 1960.

Rehearing Denied July 26, 1960.

Dissenting Opinion Aug. 16, 1960.

George Niewoehner, White Sulphur Springs, for appellant.

William L. Baillie and Jardine, Stephenson, Blewett & Weaver, Great Falls, William L. Baillie, argued orally, for respondent.

GUY C. DERRY, District Judge.

Ora DeEtte Bergan, widow of Oscar Bergan, has prosecuted an appeal to this court from the judgment of the district court of the eighteenth judicial district, denying her claim for compensation based on the death of her husband, which she alleges occurred as a result of an industrial accident. Hereafter, appellant is referred to as claimant, and the two respondents are referred to as defendants.

The compensation claim was first heard before George Wood, hearings officer for the Industrial Accident Board, on February 26, 1958. The hearing was continued to August 12, 1958, at which time further testimony was taken, and the cause was deemed submitted and taken under advisement. Subsequently the hearings officer made findings of fact and conclusions of law and these were adopted by the Board. In substance, the Board found that claimant alleged that her husband died as a result of accidents arising out of and in the course of his employment on or before December 15, 1956, and January 2, 1957, and that at the time of his alleged injury, his employer was enrolled under Plan II of the Workmen's Compensation Act of Montana, and the insurance carrier was Aetna Casualty & Surety Company, defendant herein; that at the time of the alleged injury and at the time of his death, he was married to claimant and had no minor children under 18; that as of the time of his death, his average weekly wage was $55.38; that Oscar Bergan died on March 13, 1957, of coronary heart disease; that Oscar Bergan failed to give timely notice of injury to his employer; that claimant herein filed a timely claim for compensation with the Industrial Accident Board; that the facts are insufficient to support claimant's allegation that Oscar Bergan suffered accidents arising out of and in the course of his employment by Gallatin Valley Milling Company, on or about December 15, 1956, and January 2, 1957; that the facts are insufficient to support claimant's allegation of causal relationship between the alleged injuries on December 15, 1956, and January 2, 1957, and Oscar Bergan's death.

As its conclusions of law, the Board found that Oscar Bergan did not suffer an industrial accident on December 15, 1956, or on January 2, 1957, while in the employ of the Gallatin Valley Milling Company; that he failed to give timely notice of his alleged accidental injuries of December 15, 1956, and January 2, 1957, as provided for in section 92-807, R.C.M.1947; that there was no causal relationship between Oscar Bergan's death and the alleged accidental injuries of December 15, 1956, and January 2, 1957; that by reason of the fact that Oscar Bergan did not suffer an industrial accident within the meaning of the Workmen's Compensation Act, and by reason of the fact that Oscar Bergan failed to give timely notice of his alleged injuries, and by reason of the fact that no causal relationship exists between the alleged injuries, and Oscar Bergan's death, claimant's claim for compensation may not be maintained.

Claimant appealed from the decision of the Board to the district court for Gallatin County. By the minutes of the court of November 13, 1958, it is made to appear that the appeal was heard in the district court solely upon the record made in the hearing before the examiner. Subsequently, the trial court made and entered its findings of fact and conclusions of law substantially as stated in the findings made by the Board, but with this additional conclusion of law, to-wit: 'That there was no direct evidence presented of any accident or accidents since hearsay testimony standing alone is not adequate evidence before the Industrial Accident Board to establish claimant's case by the necessary preponderance of evidence.'

By her specifications of error, claimant contends that the Board, in the first instance, and the trial court in the second, was in error in holding that decedent failed to give timely notice of injury to his employer and that such failure is a bar to proceedings; that the Board and the court erred in its finding that Oscar Bergan did not sustain an industrial accident as alleged and that the accidents did not cause, aggravate or accelerate the heart condition from which he died, and in dismissing the claim of the widow; that the district court erred in making and entering its conclusions of law concluding that the hearsay testimony introduced on behalf of claimant stood alone and that said testimony was not adequate, and thereby impliedly concluding the admission of such testimony by the Industrial Accident Board was subject to review.

There is some confusion in the record made before the Board and which was subsequently reviewed by the trial court. As found by the trial court, the evidence offered by the claimant was entirely hearsay. While this court has held that testimony, based on hearsay, may be accepted or rejected in the discretion of the Board (Ross v. Industrial Accident Board, 106 Mont. 486, 495, 80 P.2d 362) this court has repeatedly said that the weight to be given to the testimony of witnesses is exclusively for the Board in the first instance and in the trial court in the second. See Bowen v. Webb, 37 Mont. 479, 97 P. 839; Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587; Rentfro v. Dettwiler, 95 Mont. 391, 26 P.2d 992; Dean v. Anaconda Co., 1959, 135 Mont. 13, 335 P.2d 854. There is room for doubt whether the Board accepted the hearsay testimony.

The first witness called by claimant was Dr. Deane C. Epler. A question was asked by claimant's counsel with reference to a statement made by William Penttila and filed in the case. The Penttila statement is entirely based on hearsay. Counsel for defendants objected to the evidence and stated his position that he would raise the objection to any statement, or any evidence presented, which was based on hearsay. The following shows in the transcript:

'Mr. Wood: We will allow this questioning, Mr. Niewoehner, if it is understood that it is to be connected up by direct evidence; if not, the objection will be sustained at a later time. The objection at the present time is taken under advisement. Go ahead. Let the record show that there is a continuing line of objection by counsel for defendant to this line of inquiry.'

The record does not show any further proceedings which amplify the above statement. It does indicate the position taken by the examiner at the beginning of the hearing. The finding, of the court that the hearsay evidence standing alone was not adequate to sustain claimant's case by a preponderance of the evidence, is in effect a finding that from the whole case, giving the testimony the weight it deemed it was entitled, the court found claimant did not sustain the burden of proof. In other findings, both the Board and the court found there was no industrial accident and no causal relationship between the alleged accident and the resulting death. The additional conclusion is not necessary to decide the case. When it was found no industrial accident occurred, the case was ended. In any event, it merely points out that the court in this case did not regard the hearsay evidence as sufficient to establish the claim. While this court has consistently disregarded technical rules of evidence in Workmen's Compensation cases, and has been most liberal in its interpretation of the law affecting such claims in favor of claimant, it must be conceded here that the evidence, in support of claimant's case, to be accepted as being sufficient to justify the overruling of the order of the Board and the trial court, would require the court to go far beyond the previous rulings of the court in determining what is the preponderance of the evidence. A brief resume of the evidence will show this to be true.

In support of her case, claimant produced four witnesses. Dr. Deane C. Epler, testified as a witness for the claimant and also was called as a witness for the defendants. He made an examination of the decedent on December 17, 1956. At that time, he found extensive heart muscle damage with left bundle branch block. In his opinion, decedent had had a long-standing coronary heart disease. He had previously treated Mr. Bergan. The examination in December was the first occasion he had to investigate the heart condition, and he gave as his opinion that he undoubtedly had had changes in his heart for some period of time. A hypothetical question was put to the doctor (based on hearsay evidence) stating that decedent was operating a hand-operated elevator or man-lift, and while in the upper part of the elevator the grain conveyor became plugged and the belt stopped, which fact was recognized by him from the sound, and that he immediately jumped on the man-lift and started to pull himself down to the main floor to shut off the flow of grain; that just as he reached the main floor, he 'jumped off the man-lift and as he hit the floor he said that pain hit him in the chest region'; that he cleaned up a pile of grain but said that he didn't feel good at all; that he had called Dr. Epler that evening when he got home. The doctor was then asked whether based upon that history of 'an accident and your knowledge of the medical facts in this case', he had an opinion, that he could state with reasonable certainty, as to whether the terminal heart failure which developed in December, could have been caused by the...