Nicholson v. Roundup Coal Mining Co.
| Decision Date | 08 June 1927 |
| Docket Number | 6106. |
| Citation | 257 P. 270,79 Mont. 358 |
| Parties | NICHOLSON v. ROUNDUP COAL MINING CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Musselshell County; Robert C. Stong Judge.
Proceedings under the Workmen's Compensation Act by Mae Nicholson compensation claimant, for the death of her husband George W Nicholson, opposed by the Roundup Coal Mining Company, the employer. From an order of the district court dismissing the appeal and affirming an order of the Industrial Accident Board denying an award, claimant appeals. Reversed and remanded, with direction to enter judgment for claimant.
Charles F. Huppe, of Roundup, and Timothy Nolan and Harlow Pease, both of Butte, for appellant.
A. G. McNaught, of Roundup, for respondents.
Appeal from a judgment dismissing plaintiff's claim for compensation for the death of her husband.
The Roundup Coal Mining Company operates a coal mine in Musselshell county, and is bound by plan No. 1 of the Compensation Act (Rev. Codes 1921, § 2816 et seq.). On December 18, 1924, George W. Nicholson, an employee of the company, dropped dead in the "main air course" of the mine while passing from the premises after his day's work. Two physicians and surgeons performed an autopsy on the body and thereafter testified at an inquest held to determine the cause of death. In due time Mae Nicholson, wife of the deceased and a "beneficiary" entitled to compensation if the case comes within the provisions of the act, filed her claim with the Industrial Accident Board and therein alleged that Nicholson "was killed in the course and during his employment * * * as a result of an accident in the mine." This allegation was denied by answer filed, and the company therein affirmatively alleged that the cause of death was heart failure, "a natural cause," and, with the answer, submitted the joint affidavit of the doctors who performed the autopsy, in which they state "they found his heart in a diseased condition, known as tricuspid stenosis, which they believe caused death," and an informal statement, by the miner who discovered his body, in which he says:
The manager of the company supplemented these statements by letter addressed to the board, in which he added the following to the doctors' statement:
"This particular disease makes the victim liable to death at any moment and anywhere, so Nicholson was just as likely to have died in his own home as in the mine."
He then quoted the miner's statement, and concluded:
"Consequently there could have been no accident of any sort to bring on the death."
On this showing the board refused to grant the claimant a hearing, held that there was no "industrial accident," and entered its order disallowing and dismissing the claim. The claimant moved for a rehearing, and, in support thereof, filed with the board a transcript of the testimony taken at the coroner's inquest. This motion was denied, and thereafter the claimant appealed to the district court, whereupon all of the files and records of the board, including correspondence had, were duly certified to the court, and, on the trial, the court permitted each party to introduce oral testimony on all questions involved, so that the court had before it a complete case, independent of the showing made to the board.
1. The claimant complains of the court's failure to make and file findings of fact, but, as she did not request findings, as required by the statute, she is in no position to predicate error upon this omission. Section 9369, Rev. Codes 1921.
2. Claimant's first and third assignments of error are directed against the court's method of disposing of her appeal. The first charges that the court adopted "a rule incompatible with the status of the case as the Industrial Accident Board left it by its decision, viz. the rule of affirming existing findings of fact, none of which were made by the board"; and the third asserts that the court "in effect refused to take jurisdiction of the cause on appeal from the board and determine the law and the facts."
Each of these assignments has merit. The board held no hearing and, in effect, disposed of the claim as on a motion for judgment on the pleadings on questions of law, although the pleadings raised an issue as to whether decedent's death was caused by accident or resulted from natural causes, and, in order to arrive at its decision, the board must have taken into consideration the ex parte showing made by the company. The board's decision on a question of law stands in a very different situation from its findings of fact based on evidence received at a hearing. The rule invoked does not apply to decisions on questions of law, and has application only to those appeals determined on the "cold record" certified to the court by the board, as pointed out in the Morgan Case referred to; it is not controlling in cases in which the court permits additional testimony, and has no application when the additional testimony shows fact conditions differing from those presented to the board. On all appeals in which the court permits such additional testimony, the trial is a re-examination in the nature of a review, so far as the record made before the board is concerned, but, as the additional testimony was not before the board, the trial is de novo as to such additional evidence. Dosen v. East Butte Copper Min. Co., 78 Mont. ---, 254 P. 880; Novak v. Industrial Accident Board, 73 Mont. 196, 235 P. 754. The court should have considered all of the evidence adduced, and determined the questions presented on appeal according to the law and the evidence.
There is no substantial conflict in the evidence, the material portions of which are as follows: George W. Nicholson had worked as a miner in the mines of the Roundup Mining Company for a period of years prior to his death, at which time he was a man 42 years of age, weighing 166 to 168 pounds, unusually strong and athletic and, apparently, in robust health. On December 18, 1924, he worked in the mine from 7 a. m. to about 2:30 p. m., or some time prior to the end of the usual shift which changed at 3:15 p. m. As he had finished his work for the day, he was at liberty to go home. He wore a stocking cap over his working helmet and wore a mackinaw coat; was dressed for cold weather. In the outer air the thermometer stood at 28 degrees below zero and the temperature within the "air course" was the same as that outside, while the temperature in the workings of the mine stood at 80 to 100 degrees higher than that on the outside and in the air course. With a companion, Nicholson traversed the main haulage course to a point approximately 500 feet from the surface, when they entered the air course through a communicating door. The companion stopped to button his outer garments against the cold, while Nicholson proceeded toward the surface; the companion stumbled upon Nicholson's body a short distance from the exit. This "air course" is a tunnel approximately 6 1/2 feet high by 6 feet wide, paralleling the "main haulage course" or exit tunnel from the mine, and has an upward grade from the workings to the surface of 4 or 5 degrees; doors communicate between the two at intervals. At the exit of this "air course," a large fan is installed which, when in operation, forces 72,000 cubic feet of air per minute into the mine, and this air traverses the air course at the rate of approximately 1,000 feet per minute.
At the periods of the day when shifts are changed, the company furnishes the men with means of transportation from the...
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