Chmielewska v. Butte & Superior Mining Co.

• Decision Date: 30 November 1927
• Docket Number: 6206.
• Citation: 261 P. 616,81 Mont. 36
• Parties: CHMIELEWSKA v. BUTTE & SUPERIOR MINING CO.
• Court: Montana Supreme Court

261 P. 616

81 Mont. 36

CHMIELEWSKA v. BUTTE & SUPERIOR MINING CO.

No. 6206.

Supreme Court of Montana

November 30, 1927

Appeal from District Court, Silver Bow County; George Bourquin Judge.

Proceeding under the Workmen's Compensation Act by Marjanna Chmiel-Chmielewska for the death of her husband, Jan Chmiel vel Chmielewska, opposed by the Butte & Superior Mining Company, employer. An award of the Industrial Accident Board denying the claim was reversed on appeal to the district court, and the employer appeals. Reversed.

Kremer Sanders & Kremer, of Butte, for appellant.

C. T Haas and Peter A. Schwabe, both of Portland, Or., and John W James, of Anaconda, for respondent.

CALLAWAY C.J.

This is an appeal by defendant from a judgment in favor of plaintiff. The facts are that one whose true name seems to have been Jan Chmiel vel Chmielewska died on January 12, 1925, of injuries received in the course of his employment while he was in the employ of the Butte & Superior Mining Company, a corporation. The deceased, a Pole, left a wife and child residing near Warsaw, Poland. On January 18, 1925, Jan Sierocki, a friend of the deceased, by letter of that date, notified the consul general of the republic of Poland at Chicago of the fatal accident. The consul general instructed his western representative, C. T. Haas, an attorney at law at Portland, Or., to take steps to safeguard the interests of the heirs, so that they might obtain the benefits of the Compensation Act. Mr. Haas immediately advised the Industrial Accident Board of his intention to file a claim for compensation on behalf of the widow, and requested forms for the presentation of the claim, saying he had authority to do so. The board informed Mr. Haas the Butte & Superior Mining Company was a self-insurer, and he should get the forms from that company. Haas informed the company that he intended to make claim for the widow, and requested that proper forms be sent him. This the company did promptly, and with equal promptness Haas sent the forms to the consul general, with detailed instructions for their execution and a special notation that the utmost haste was required in having them executed by the widow, because of the 6-months limitation for filing the claim.

The consul general's records show that he received the forms on February 20, 1925, and, after translation and drawing the regular requisition, forwarded them to the Court of Peace of Biala-Podlaska, Poland, on March 12, 1925. The documents were executed by the widow, Marjanna Chmiel vel Chmielewska, on April 25, 1925. Documents showing identity and relationship were issued by the Bureau of Vital Statistics on May 15, 1925; these were legalized by the court on May 16, and all the documents were legalized by the Circuit Court of Biala, Poland, on May 17, 1925. Then they were legalized and superlegalized, by the Ministry of Justice at Warsaw, by the Foreign Office, and by the American consul general at Warsaw. The documents, with their seals, were then returned to the Foreign Office, and eventually forwarded to the consul general of Poland in Chicago, in whose office they arrived July 23, 1925, 11 days after the expiration of the 6 months elapsing after the death of Jan Chmiel vel Chmielewska. Delay from July 23 to October 5, 1925, when the documents were sent to Mr. Haas, is explained by the consul general at Chicago thus:

"By intervention of unpreventable seasonable restriction in the consular staff, making translation and dispatch of documents impossible."

The papers were filed with the Industrial Accident Board on October 16, 1925. The defendant filed a protest against the allowance of the claim for compensation, on the ground that under the provisions of section 2899, R. C. 1921, the claim was filed too late. After consideration, the board denied the claim. Upon appeal, the district court held the conclusion of the board to be "unreasonable, under the law and all the circumstances of the case," and ordered judgment for plaintiff.

Section 2899, supra, reads as follows:

"In case of personal injury or death, all claims shall be forever barred unless presented in writing under oath to the employer, the insurer, or the board, as the case may be, within six months from the date of the happening of the accident, either by the claimant or some one legally authorized to act for him in his behalf."

The question is whether this statute is susceptible of a construction which will excuse the failure to file a claim for compensation "within six months from the date of the happening of the accident." Counsel for plaintiff urgently call to our attention section 2964, R. C. 1921 which provides that, whenever the Compensation Act or any part or section thereof is interpreted by a court, it shall be liberally construed. All of the decisions of this court in construing the Compensation Act have been in accord with that policy. The statute was referred to specifically in Page v. New York Realty Co., 59 Mont. 305, 196 P. 871, and Dosen v. East Butte Copper Mining Co., 78 Mont. 579, 254 P. 886. Moreover, by the provisions of section 4, R. C. 1921, all the provisions of the Codes and all proceedings under them are to be liberally construed, with a view to effect their objects and to promote justice. But in the construction of a statute the office of the...