Cunningham v. Northwestern Improvement Co.

• Decision Date: 21 November 1911
• Citation: 119 P. 554,44 Mont. 180
• Parties: CUNNINGHAM, State Auditor, v. NORTHWESTERN IMPROVEMENT CO.
• Court: Montana Supreme Court

119 P. 554

44 Mont. 180

CUNNINGHAM, State Auditor, v. NORTHWESTERN IMPROVEMENT CO.

Supreme Court of Montana

November 21, 1911

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Submission of controversy on agreed statement of facts of Harry R Cunningham, as State Auditor of the State of Montana, against the Northwestern Improvement Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Wm. Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

Albert J. Galen, Atty. Gen., and J. A. Poore, Asst. Atty. Gen., for respondent.

SMITH J.

The Eleventh Legislative Assembly passed "an act to create a state accident insurance and total permanent disability fund, for coal miners and employés at coal washers in the state of Montana, and providing for the maintenance and management of the same; extending and defining the duties of the State Auditor, and fixing penalties for the violation of the provisions of this act." See chapter 67, p. 81, Laws of 1909. In order to understand the act in detail, it seems advisable to quote it in full. It reads as follows:

"Section 1. All workmen, laborers and employés employed in and around any coal mines, or in and around any coal washers in which coal is treated, except office employés, superintendents and general managers, shall be insured in accordance With the provisions of this act, against accidents occurring in the course of their occupations.

"Sec. 2. All corporations, partnerships, associations or persons engaged in the business of operating any coal mine or coal washers in the state of Montana shall pay to the Auditor of the State, within five days after the monthly wages at the particular mine shall have been paid, one cent per ton on the tonnage of coal mined and shipped, or sold locally, or having been mined is ready for shipment or sale during the month for which the wages were paid; and all persons mentioned in section 1 employed in and about coal mines shall allow to be deducted from their gross monthly earnings one per cent. thereof, the deduction to be made by the agent, manager, or foreman of any corporation, association, partnership, person or persons engaged in the business of operating any coal mine or coal washer, and paid to the State Auditor within five days after such monthly wages have been paid.

"Sec. 3. The agent, manager, foreman or accountant of any corporation, partnership, association, person or persons engaged in mining coal in Montana, shall on or before the fifth day succeeding the pay day at his respective mine, make report under oath to the State Auditor as to the tonnage mined and subject to the payment of one per cent. per ton thereon; and stating the gross earnings subject to the one per cent. deduction as provided in this act, accompanied by a certified check in full for the amount of the tax provided in section 2 of this act. It shall be unlawful for any person, employer, employé, corporation, partnership, association or union to make any contract waiving, avoiding or affecting the full legal effect of this act.

"Sec. 4. It is hereby made the duty of the State Auditor to receive all moneys as provided for in this act, and to send the proper acknowledgment to the person making such remittance. The Auditor shall pay all moneys so received by him to the State Treasurer, who shall keep such sums in safe custody in a distinct fund to be known as the employers and employés co-operative insurance and total permanent disability fund. The State Treasurer must invest the surplus of this fund in safe and convertible state, county or city bonds, or bonds of the United States. All interest accruing from such investments shall be accredited to this insurance fund. The bond of the State Treasurer shall be liable for such funds, and it shall be his duty to keep accurate accounts of the receipts and disbursements of such money.

"Sec 5. The Auditor of State shall keep full statistics of the operation of this function of his department in the event of death by accident of an employé insured under this act, who shall have come to his death in the course of his employment and by causes arising therein. The Auditor of State upon being satisfied by adequate evidence of such death shall issue a warrant upon the State Treasurer to persons dependent upon the deceased, these warrants to issue in the following order: (1) To surviving wife and child, or children, in equal shares, and if neither wife or child, or children be alive, then (2) to surviving parents who are dependent, or partially so, upon the deceased; if none, then (3) to such other relatives of the deceased as survive him and are dependent upon him, in the sum of three thousand ($3,000.00) dollars.

"A workman receiving injuries which permanently incapacitate him from the performance of work shall receive a compensation monthly, not to exceed one dollar ($1.00) a day for each working day. Compensation for permanent injury shall not be allowed until after the expiration of twelve weeks from the time such injuries were sustained, provided that the medical practitioner examines and pronounces the injury as being permanent, compensation may then be allowed from commencement of disability. The Auditor of State, however, may, when in his judgment he deems it advisable, use so much of the funds as is necessary in the procuring of a medical practitioner, for the purpose of examination or treatment under this act, for such injuries as herein mentioned compensation shall continue during disability, or until settlement if effected as provided for in section 9 of this act. Total or permanent disability shall consist of the loss of both legs or both arms, the total loss of eyesight or paralysis, or other conditions incapacitating him from work, caused by accident, or injuries received during employment as specified by this act; provided, that if death, as a result of the injury, ensues at a period not longer than one year from date of accident the sum of three thousand dollars ($3,000.00) shall be paid the deceased workman's dependents as hereinbefore provided. The representatives of a foreigner, except the widow or dependent children, who were not living within the country at the time of the accident, shall have no claim for the compensation provided for in this act. Such foreign person shall file their foreign address, if married, with the office of their employer with whom they are employed and duplicate thereof with the State Auditor, giving their wife's name and dependent children, and such other identification as may be required by the Auditor of State. Loss of any limb or eye, caused by accident to a workman while employed as provided for in this act, shall be compensated for in the sum of one thousand ($1,000.00) dollars, provided, that in the event there shall be no funds available in the fund to pay the Auditor's warrant when drawn the same shall draw interest out of the fund at the rate of ten per cent. per annum until such warrant is called for payment by the Treasurer which shall be as soon as the fund is sufficient to pay the same with its interest when due.

"Sec. 6. Where a workman is entitled to monthly payments under this act, he shall file with the Auditor of State his application for such, together with a certificate from the county physician of the county wherein he resides, attested before a notary public.

"Sec. 7. If any person or persons, company or corporation who is then paying into this insurance fund shall believe that any person or persons are obtaining, or having made application to obtain benefits thereunder improperly or fraudulently, and shall file his written request that such person's claim be investigated, the State Auditor must, upon the receipt of such request request the Secretary of the State Board of Health to make an examination for the purpose of this act and his certificate as to the condition of the person or persons with reference to their rights to benefit under this act shall be conclusive evidence as to his condition.

"Sec. 8. If the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation under this act shall be suspended until such examination takes place, and shall absolutely cease unless he submits himself for an examination within one month after being required to do so.

"Sec. 9. When any monthly payment has been made to a workman for any period whatever, the liability under this act may, on the application by, or on behalf of the workman, be redeemed by the payment of a lump sum, which in no instance shall be in excess of the amount specified as death indemnity and all monthly payments made prior shall be deducted from such settlement.

"Sec. 10. The Auditor of State shall report in January of each year to the Governor of the experience and business of this function of his department, and shall have plenary power to determine all disputed cases which may arise in its administration not herein provided for, and to recommend in his report the rates or premium necessary in order to preserve such fund, and shall order paid such indemnification as herein provided. He shall have power to define the insurance provisions of this act by regulations not inconsistent therewith and shall prescribe the character of the monthly or other reports required of the parties liable hereunder and the character of the proofs of deaths, or to total permanent disability, and shall have power to make all other orders and rules necessary to carry out the true intent of this act.

"Sec. 11. No money paid or payable in respect of insurance or monthly compensation under this act shall be capable of being assigned, charged, taken into execution, or attached,

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