Nigretto v. Industrial Accident Fund

• Decision Date: 05 October 1940
• Docket Number: 8083.
• Citation: 106 P.2d 178,111 Mont. 83
• Parties: NIGRETTO v. INDUSTRIAL ACCIDENT FUND.
• Court: Montana Supreme Court

106 P.2d 178

111 Mont. 83

NIGRETTO v. INDUSTRIAL ACCIDENT FUND.

No. 8083.

Supreme Court of Montana

October 5, 1940

Appeal from District Court, Second District, Silver Bow County Jeremiah J. Lynch, Judge.

Proceeding under the Workmen's Compensation Act by Celestina Nigretto to recover compensation for the death of Charles Nigretto, employee, opposed by the Industrial Accident Fund insurance carrier. From a judgment affirming the Industrial Accident Board's decision denying compensation and dismissing the claim, claimant appeals.

Affirmed.

Joseph P. Monaghan, of Butte, for appellant.

Toomey McFarland & Chapman, of Helena, for respondent.

ERICKSON Justice.

This appeal is taken from a judgment of the district court of Silver Bow county affirming the decision of the Industrial Accident Board denying compensation to the plaintiff, and dismissing her claim arising out of the death of her husband Charles Nigretto.

The undisputed facts are that the deceased, Charles Nigretto, was employed by the Basin Montana Tunnel Company during November of 1937 and the early part of 1938, including the first weeks of the month of March; that on or about the first day of November, 1937, while engaged in pulling a log from a pile of timber, one of the logs in the pile slipped and rolled in such a manner as to throw the deceased to the ground in a sitting position; that he continued to work out the shift and worked for several days thereafter; that on or about November 5 or 6 of 1937 he obtained a hospital slip from his employer, on which his difficulty was described as "rectal disturbance;" that he went to the Murray Hospital in Butte on November 6th and was operated upon for rectal abscess; that he made normal recovery from that operation and returned to work on January 20, 1938; that he continued to work until March 9, 1938; that upon the latter date he complained of having a cold and pains in his chest and secured a hospital slip and went to Butte that afternoon where he consulted a doctor; that on March 12th he went to the Murray Clinic, where he was examined by Dr. Atkins, who made a notation of his findings in the day book of the clinic as follows: "Flu--Pleurisy--T. 98.6 Chest--friction rub right upper;" that on the next day the deceased returned to the hospital in very bad condition and died later the same day; that subsequently a death certificate was signed by one of the other physicians of the hospital stating the principal cause of death as broncho-pneumonia with day of onset as March 11, 1938, and as a contributory cause a fractured rib, with date of onset as March 12, 1938.

Upon hearing before the board evidence was adduced showing that the notation "friction rub" was erroneously transcribed by a clerk at the clinic to the hospital record of the deceased so as to read "fractured rib right upper," and in making out the death certificate the physician referred to the hospital records and clinic card rather than the original day book, and thus mistakenly placed upon the death certificate, as a contributory cause, a fractured rib. Subsequently the words "fractured rib" were stricken out and the words "friction rub" were inserted in the death certificate.

The question determinative of this appeal concerns the sufficiency of the evidence to sustain the finding of the board and the trial court. In the first instance, the board is the trier of the...