Morgan v. Butte Central Min. & Mill. Co.

• Court: Montana Supreme Court
• Writing for the Court: MATTHEWS, J.
• Citation: Morgan v. Butte Central Min. & Mill. Co., 58 Mont. 633, 194 P. 496 (Mont. 1920)
• Decision Date: 13 December 1920
• Docket Number: 4651.
• Parties: MORGAN v. BUTTE CENTRAL MIN. & MILL. CO. ET AL.

194 P. 496

58 Mont. 633

MORGAN v. BUTTE CENTRAL MIN. & MILL. CO. ET AL.

No. 4651.

Supreme Court of Montana

December 13, 1920

Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.

Proceeding by P. F. Morgan under the Workmen's Compensation Act to obtain compensation as a dependent for the death of a brother, Edward Morgan, opposed by the Butte Central Mining & Milling Company, the employer, and the Guardian Casualty & Guaranty Company, the insurer. An order denying compensation was reversed by the district court, and the employer and insurer appeal. Reversed and remanded, with directions to enter judgment in accordance with the findings of the Industrial Board.

Kremer Sanders & Kremer, of Butte, for appellants.

Galen & Mettler and E. G. Toomey, all of Helena, for respondent.

MATTHEWS J.

On July 12, 1916, one Edward Morgan, an employee of the defendant mining company, met death in an accident arising out of and in the course of his employment. All of the parties hereto are subject to the provisions of "plan two" of the Workmen's Compensation Act (chapter 96, Laws of 1915). Decedent had no wife, child, father, or mother. P. F. Morgan a brother 49 years of age, filed with the board, in the manner and within the time provided for by the act, a claim for compensation as a "minor dependent" on the ground that he was, at the time of the accidental death of his brother, an invalid dependent upon, and receiving support from, decedent. Numerous affidavits were filed in support of the claim, among them those of four physicians to the effect that claimant was in no condition to perform physical or mental labor.

The insurer contested the claim on the ground that, under the provisions of the act, a brother of an injured employee was entitled to compensation only when under the age of 16 years and upon the further ground that claimant was not, at the time of the accident, nor a long time prior thereto, dependent upon the decedent, but, on the contrary, was an able-bodied man capable of earning his own living. A hearing was had and oral testimony introduced. Dr. Horst was the only physician called to the stand. The board commented at length upon, but did not decide, the question as to whether a brother over the age of 16 years could, under any circumstances, be awarded compensation, but found that claimant was not an invalid within the meaning of the term as used in the act, and rejected the claim.

An appeal was taken to the district court of Silver Bow county, and it was there stipulated that the matter should be heard and determined on the record as made before the board and the briefs of counsel. The district court in its findings declared that "the findings and conclusions of the board are not in accordance with either the facts or the law," set the action of the board aside, and awarded compensation. This appeal is from the judgment of the district court.

The first question which suggests itself to our minds, though not urged by counsel, is whether, under our act, claimant is entitled to compensation no matter what his physical or mental condition was at the time of the accidental death of his brother.

Section 16 of the act provides that:

"Every employer and insurer who shall become bound by * * * plan Number two * * * shall be liable for the payment of compensation * * * to an employee who has elected to come under this act and who shall receive an injury arising out of and in the course of his employment, or, in the case of his death from such injury, to his beneficiaries, if any; or, if none, to his major dependents, if any; or, if none, to his minor dependents, if any."

The terms here used are defined in section 6 of the act:

"Sec. 6 (l). 'Beneficiary' means and shall include a surviving wife or husband * * * a surviving child or children under the age of sixteen years and an invalid child or invalid children over the age of sixteen years. * * *

Sec. 6 (m). 'Major dependent' means if there be no beneficiaries, * * * the father and mother, * * * if actually dependent to any extent upon the decedent at the time of his injury.

Sec. 6 (n). 'Minor dependent' means if there be no beneficiary, * * * and if there be no major dependent, * * * the brothers and sisters, if actually dependent upon the decedent at the time of his injury."

"Sec. 6 (o). 'Invalid' means one who is physically or mentally incapacitated."

Section 7 (a) then provides:

"In computing compensation to children and to brothers and sisters, only those under sixteen years of age, or invalid children over the age of sixteen years, shall be included, and, in the case of invalid children, only during the period in which they are under that disability * * * after which payment on account of such person shall cease. Compensation to children, or brothers or sisters, * * * shall cease when such persons reach the age of sixteen years."

In the absence of the last clause quoted, the term "invalid" applies only to a child or children, and brothers and sisters over the age of 16 years are clearly not entitled to compensation, no matter how absolute their dependency.

How far the use of the phrase "except invalids," in parenthesis after "children or brothers or sisters, in the final clause of section 7 (a), qualifies the former declaration, contained in the same section, that "in computing compensation * * * to brothers and sisters, only those under sixteen years of age, shall be included," it is not necessary for us to here determine, as the cause was by the board, and will here be disposed of on other grounds, properly presented and urged in the brief and argument of counsel.

The evidence is undisputed that at the time of the injury Edward Morgan was contributing approximately $30 per month to the support of claimant. The only question before us, therefore, assuming that an invalid brother over the age of 16 years is entitled to compensation, is: Was the finding of the board that claimant was not, at the time of the injury, an invalid within the contemplation of the act, supported by any substantial evidence?

Counsel for claimant contend that, as the appeal is from the judgment of the district court, the rule that "the Supreme Court will not reverse the findings of the district court except where the evidence clearly preponderates against them" controls, and that the findings and decision of the board are only indirectly involved. The reason for the adoption of the rule quoted is that in cases where such a rule is applicable the trial court has had the witnesses before it and had the superior advantage of considering their evidence in the light of their demeanor on the stand and the manner in which they testified. Where, however, the trial court renders its findings on the identical record presented to the appellate court, the reason for the rule does not attach; and it is one of our maxims that, "when the reason of a rule ceases so should the rule itself." Section 6178, Rev. Codes. We are in as an advantageous position as was the district court on the appeal from the findings of the board. The rule contended for should, however, have governed the action of the district court; its position is analogous to that of a district judge, other than the one who presided at the trial, to whom a motion for a new trial has been submitted. In such a case this court has said:

"When a motion for a new trial for insufficiency of the evidence is submitted to a judge other than the one who presides at the trial, for the very reason that he cannot call to his aid a recollection of the demeanor of the witnesses, he ought not to go further than to determine upon the dead record the question whether there is a decided preponderance of evidence against the verdict or decision. If such is the case, a new trial ought to be granted; otherwise not." Gibson v. Morris State Bank, 49 Mont. 60, 140 P. 76, citing Orr v. Haskell, 2 Mont. 225, and Landsman v. Thompson, 9 Mont. 182, 22 P. 1148.

This rule was applied in Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124, which was also a case arising under our Compensation Act. In the opinion, after declaring that the action of the district court is that of review rather than a new trial, we said:

"Our duty, then, is but to determine whether the evidence before the board clearly preponderates against its findings, as adopted by the court; if not, we must affirm the judgment."

This is true whether the district court adopts or rejects the findings of the board on a review of the "dead record."

The rule almost universally adopted by the courts in jurisdictions having Compensation Acts is that the findings and decision of the commission or board cannot be reversed where there is any evidence to support them:

California: Frankfort Insurance Co. v. Pillsbury, 173 Cal. 56, 159 P. 150; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P. 35; Kirkpatrick v. Industrial Acc. Comm., 31 Cal.App. 668, 161 P. 274; Smith v. Industrial Acc. Comm., 26 Cal.App. 560, 147 P. 600.

Michigan: Bayne v. Riverside S. & C. Co., 181 Mich. 378, 148 N.W. 412, 5 N.C. C. A. 837; Shafer v. Parke-Davis Co., 192 Mich. 577, 159 N.W. 304; Papinaw v. Grand Trunk Ry. Co., 189 Mich. 441, 155 N.W. 545; Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N.W. 657, L. R. A. 1916A, 17, 9 N.C. C. A. 647; Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N.W. 1027, L. R. A. 1916F, 955; Hills v. Blair, 182 Mich. 20, 148 N.W. 243.

New York: Rhyner v. Hueber Building Co., 171 A.D. 56 156 N.Y.S. 903; Hendricks v. Seeman Bros., 170 A.D. 133, 155 N.Y.S. 638; Goldstein v. Centre Iron Works, 167 A.D. 526, 153 N.Y.S. 224; Prokopiak v. Buffalo Gas Co., 176 A.D. 128, 162...