Landeen v. Toole County Refining Co.
| Decision Date | 13 May 1929 |
| Docket Number | 6478,6479. |
| Citation | 277 P. 615,85 Mont. 41 |
| Parties | LANDEEN v. TOOLE COUNTY REFINING CO. et al. BAXTER et al. v. SAME. |
| Court | Montana Supreme Court |
Appeal from District Court, Toole County; John J. Greene, Judge.
Separate proceedings under the Workmen's Compensation Act by Ethel M. Landeen and by E. M. Baxter, Sadie McDonald Olson, and A F. Dennis, claimants, opposed by the Toole County Refining Company, employer, and the Employers' Liability Assurance Corporation, insurance carrier. From judgments of district court affirming awards made by the Industrial Accident Board the employer and insurance carrier appeal. Judgments in favor of Baxter and Dennis affirmed, and judgments in favor of Landeen and Olson reversed for further proceedings.
Freeman Thelen & Freeman, of Great Falls, for appellants.
Louis P. Donovan, of Shelby, for respondents.
These are appeals from judgments of the district court affirming awards made by the Industrial Accident Board, and making additions thereto.
In October, 1927, Toole County Refining Company was engaged in the manufacture of gasoline at its plant in Toole county, and the Employers' Liability Assurance Corporation was its insurance carrier.
The refining company maintained a bunkhouse on its premises for the convenience of itself and its employés. This was heated by gas conducted through a pipe from the main gas line to a heater, and gas was turned into the bunkhouse line for the first time, after the summer, on the evening of October 3d. In the summer an employé had removed a cook stove from the bunkhouse, leaving the pipe with which it had been connected underneath the floor open, thus permitting the gas to escape in considerable quantities. On that night, October 3d, H. E. Landeen, the manager, and three other employés, John Olson, A. F. Dennis, and E. M. Baxter, slept in the bunkhouse. About 6 o'clock the next morning the men arose, and, upon Olson's attempting to light the gas heater, an explosion occurred, which caused the death of himself and Landeen, and severe injuries to Dennis and Baxter. Claims for compensation were made, respectively, by the widows of Landeen and Olson and by Dennis and Baxter. The Industrial Accident Board, after a hearing, made an award in each case. There are two appeals and a transcript in each, one from the Landeen award and the other from the awards in the Olson, Dennis, and Baxter cases. All the testimony was taken at one hearing, and we shall dispose of both appeals in one opinion.
Landeen Appeal.-There seems to be no controversy over the facts in this case. Landeen was appointed manager in July, 1927. It was his duty to supervise the physical operations of the plant and to work at whatever was necessary to be done. He was to reside upon the premises, and the bunkhouse was his place of rest. He was required to be available for duty at any time, day or night. It is conceded that Landeen's death was the result of an accident arising out of and in the course of his employment. He died of his injuries on October 6, 1927.
A physician testified that his services in caring for Mr. Landeen, together with the expenses of a nurse, ambulance, drugs, and dressing would amount to approximately $75, but the exact amount was not given. The funeral expenses paid by Edith M. Landeen, his widow, amounted to $335. The board awarded Mrs. Landeen 400 weeks' compensation at the rate of $15 per week. During the hearing, she applied to the board, asking that the weekly payments be converted into a lump sum, but the board did not act upon the application.
The insurance carrier moved for a rehearing, which was resisted by Mrs. Landeen in writing, but therein she requested, in addition to the award made by the board, that she also be allowed the reasonable burial expenses of her husband to the extent of $150, and also the "expenses necessarily and reasonably incurred by her for medical treatment, hospital services, and medical supplies furnished to the deceased employé in the amount shown by the evidence introduced upon the hearing." The board denied the rehearing, and ordered that the insurance carrier "immediately pay the medical and hospital bills of claimant, as required by law," and also immediately pay $150 on the funeral expenses of the deceased, such payment to be made either to the undertaker, or to the claimant, if the expenses had been paid by her. This order was made April 10, 1928. The insurance carrier then appealed to the district court.
Upon appeal, the case was heard upon the record certified by the board. The court approved the findings of the board in all respects. In addition, it found that Mrs. Landeen's application to convert the monthly payments into a lump sum payment should be granted, and that the worth of the weekly payments required by the act, capitalized at the rate of five per cent. per annum, is $5,155; that Mrs. Landeen is entitled to recover from the defendant the sum of $150 to be applied upon the burial expenses; and that appellant should pay the reasonable medical, surgical, and hospital services and medicines required in the treatment of Mr. Landeen before his death, which amount the court was unable to ascertain from the record; and rendered judgment accordingly. From the judgment both the employer and the insurance carrier, hereafter called the defendants, appealed to this court.
1. Defendants assign as error the court's action converting the monthly payments into a lump sum payment and fixing the amount thereof.
The authority for such action is contained in section 2926 of the Revised Codes of 1921: In view of the language of this section, we have no doubt that the power to convert the monthly payments into a lump sum payment is reposed, in the first instance, in the Industrial Accident Board. The question "shall rest in the discretion of the board, both as to the amount of such lump sum payment and the advisability of such conversion." Experience has demonstrated that lump sum awards should be the exception rather than the rule. Lincoln Water & Light Co. v. Industrial Commission, 332 Ill. 64, 163 N.E. 381; Harper's Workmen's Compensation (2d Ed.) § 185.
Sangamon County Mining Co. v. Industrial Commission, 315 Ill. 532, 146 N.E. 492.
"Commutation being a departure from the normal method of payment is to be allowed only when it clearly appears that the condition of the beneficiaries warrants such a departure, but there should be no hesitancy in permitting such departure where the best interests of the parties demand it." Honnold on Workmen's Compensation, § 179.
The determination of this question requires the exercise of a sound discretion. The board is more favorably situated than is the court to familiarize itself with the circumstances surrounding the applicant, to consider his needs, and the results which probably will follow action granting or denying the application; the power "must be exercised in conformity with the spirit of the law and so as to best promote the ends of justice." Id.; Reteuna v. Industrial Commission, 55 Utah, 258, 185 P. 535.
Having entered its order granting or denying the application, the board's decision will not be disturbed upon appeal, except for an abuse of its discretion. Sullivan v. Anselmo Mining Corporation, 82 Mont. 543, 268 P. 495; Reteuna v. Industrial Commission, supra; Stephenson v. State Industrial Commission, 79 Okl. 228, 192 P. 580.
The board did not pass upon the application of the claimant in this case when it rendered its decision, but we do not draw any special inference from that. It may have intended to postpone consideration upon that point. It was not required to decide whether it would or would not commute the payments to a lump sum payment at the time it made its decision, but could have done so afterwards.
Section 2952, R. C. 1921, provides: ...
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