Magelo v. Roundup Coal Mining Co.
| Decision Date | 15 November 1939 |
| Docket Number | 7913. |
| Citation | 96 P.2d 932,109 Mont. 293 |
| Parties | MAGELO v. ROUNDUP COAL MINING CO. et al. |
| Court | Montana Supreme Court |
Rehearing Denied Dec. 19, 1939.
Appeal from District Court, Fourteenth Judicial District Musselshell County; Wm. L. Ford, Judge.
Action by Charles Magelo against the Roundup Coal Mining Company and another for libel. From a judgment of dismissal, plaintiff appeals.
Reversed and remanded with directions.
F. W Mettler, of Billings, for appellant.
S. C Ford, of Helena, and W. W. Mercer, of Roundup, for respondents.
This is an appeal from a judgment for defendants dismissing plaintiff's complaint after a general demurrer thereto was sustained without leave to amend. The sole question presented is the sufficiency of the complaint.
Summarized the complaint sets forth either positively or upon information and belief that in January, 1930, and for many years prior thereto, plaintiff was employed by the defendant company as a coal miner; that the company was operating under Plan One of the Workmen's Compensation Act (Rev.Codes 1935, § 2816 et seq.); that on January 14, 1930, on January 17th and on February 19th plaintiff sustained industrial accidents which were compensable under the Act; that defendant Mattox was then and now is general manager of the defendant company; that the defendant company had actual knnowledge of the accidents and injuries of plaintiff through its general manager, the defendant Mattox, and that plaintiff caused written notice of the accidents to be given within thirty days after the date of the last accident, all of which appears from the letter written by the defendants to the Industrial Accident Board, which letter will hereinafter be set out in full. That on March 6, 1930, plaintiff filed a claim for compensation with the Industrial Accident Board; that a hearing was had on May 17, 1930, resulting in a denial of compensation on the ground that plaintiff "did not give a written notice as is required by section 2933;" that no answer was filed or presented to the claim, and that the board did not decide or consider the merits of plaintiff's claim though plaintiff produced proof thereof; and that on March 11, 1930, defendants wrote a letter to the board reading:
"Roundup, Montana, March 11, 1930.
Received Mar. 13, 1930
Industrial Accident Board.
Helena, Montana.
Dear Sir: Re:Claim 1019-A-15-Charles Magelo.
Reference is made to your letter of March 8th, quoting from a letter received from Attorney Charles F. Huppe, in the above matter.
Our records show that Magelo was at his work in our mines and worked full shifts on the following dates: January 14th, 16th and 17th. He did not work on January 15th. He was again idle on January 20th. These are the 5 days the mine operated during that period and the only days he would be called to work.
After Magelo had been away from work for several shifts, after January 20th, we communicated with the doctor, who advised that Magelo had been to him once or twice for treatment but that he should return to work. This was on February 13th or 14th. We saw Magelo that day and advised him of the doctor's report. On February 18th Magelo returned to work and worked the 18th and 19th. Since February 19th the mine worked on February 27th and 28th and March 4th, 5th, 6th and 10th. Magelo worked none of these days and has lost 6 shifts since he laid off on February 20th.
About March 1st Magelo came to our office and demanded compensation for the period of his incapacitation, bringing with him a certificate from Dr. C. T. Pigot, which reads as follows:
'Chas Magelo was sick and unable to work from January 17th to February 9, 1930.' Dated; February 8, 1930. Signed: C. T. Pigot.
Although we had no report on an injury, we offered Magelo compensation on the basis of the doctor's certificate, which he refused to accept.
Since the receipt of your letter of the 8th we have called up Dr. Pigot who advises that he has treated Magelo for lame back on two occasions recently, on March 7th and March 11th. In view of our report from the doctor and the fact that we had no immediate knowledge of the alleged accident (although Magelo has been injured 5 times at different times since the inception of the Compensation Act familiar with the requirements in regard to notification of an accident), we are not inclined to believe that he is entitled to compensation beyond the amount we offered to pay as described above. We seem to have the matter of compensation before your Board quite regularly and take the liberty of calling your attention to previous cases where this same man claimed compensation:
On Sept. 14, 1915, he claimed a minor injury, but returned to work 21st and received no compensation.
On June 23, 1916, Magelo was injured and claimed compensation. Investigation disclosed the fact that, altho injured, he was violating the mining laws of the State of Montana and the Rules and Regulations of this Company, which violation was the direct cause of his injury. A ruling of your Board under date of July 1st, 1916 (accident 4394) denied compensation on the grounds of wilful negligence.
On November 27, 1917, fell down while carrying a chunk of coal and claimed incapacitation for a period of 5 weeks on account of a contusion on a finger. Compensation in the amount of $50.00 was paid for this injury.
On October 29, 1918, was caught between mine car and coal, and squeezed (accident 620-A-4). The doctor estimated an incapacitation period of three weeks. We refer you to your files in this case which indicate a contest over compensation, the doctor claiming that continued incapacitation, beyond 3 weeks, was caused by a severe attack of influenza, which was prevalent at the time. Without forcing a hearing and to give Magelo the benefit of the doubt, we voluntarily paid compensation on the basis of 9 weeks incapacitation.
On February 11, 1926, suffered comminuted fracture of right great toe. (Claim 949-C-11) The doctor estimated an incapacitation period of 12 weeks. After a period of correspondence and a hearing held at Billings, we paid a total compensation of $225.00. On account of this accident Magelo was idle for a period of 36 weeks.
Reference to this file indicates that your Board had information to the effect that (Quotation: Your letter 11/13/26)
Following the above information from our records, and the files contained in your office, we wish to call your attention to the following:
1. Magelo, while pursuing the same work as is performed by the balance of our underground men,--recently having been favored with work even less hazardous and dangerous than the balance of the men,--has been before your Board on six different occasions, claiming compensation. On five of these occasions there is evidence of a longer period of incapacitation than is usual for like injuries.
2. Reports by attending physician, on which we have on previous occasions based our attitude of refusing compensation, have not always been made by the same physician. Dr. A. P. Stephenson, attending physician at the time of the injury on October 29, 1918, offered the same report covering possible exaggeration as has Doctor C. T. Pigot on the occasion of the other injuries above referred to.
3. Magelo returned to work for February 18th and 19th. Before the next working day he visited our office and learned that there would be a controversy over compensation. After which he remained away from work for the few days he could have worked since that time, and to this date. In the meantime he has referred the matter to an attorney.
4. Magelo is paid a daily wage of $7.19. At this time of the year, with the mine operating part time, he would earn less than $15.00 per weeks, or even less than the weekly compensation payment. On the occasion of the injury on February 11, 1926 (Claim 949-C-11) Magelo would have earned less money during the period he claimed he was unable to work, than the amount of claimed compensation.
We are going into this matter in detail, offering only information taken from our records and the files of your Board, with a view of furnishing your Board with information that will permit you to decide promptly as to the proceedings necessary in this case. We would prefer that the matter should not drag along during the summer period, when the mine is working one or two days a week. Certainly, the matter of compensation for Charles Magelo has become a periodical affair, and if compensation is due him, beyond the amount we have offered to give him, we would be pleased to be advised promptly.
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