Ross v. Industrial Accident Board

• Decision Date: 28 April 1938
• Docket Number: 7765.
• Citation: 80 P.2d 362,106 Mont. 486
• Parties: ROSS et al. v. INDUSTRIAL ACCIDENT BOARD.
• Court: Montana Supreme Court

80 P.2d 362

106 Mont. 486

ROSS et al. v. INDUSTRIAL ACCIDENT BOARD.

No. 7765.

Supreme Court of Montana

April 28, 1938

Rehearing Denied June 16, 1938.

Appeal from District Court, Yellowstone County, Thirteenth District Stewart McConochie, Judge.

Proceeding under the Workmen's Compensation Act by Edward E. Ross and another, claimants, for the death of Dale V. Ross employee, opposed by the Industrial Accident Board. Judgment for claimants, and the Board appeals.

Affirmed.

Myles J. Thomas and E. G. Toomey, both of Helena, for appellant.

Lawrence E. Gaughan, of Billings, for respondents.

ANGSTMAN Justice.

Dale V Ross, an unmarried man, was accidentally injured on May 28, 1935, while in the employ of Morrison & Welch, of Billings. He was then of the age of 23 years. He died the following day as the result of the injuries. His employer was enrolled under Plan 3 of the Workmen's Compensation Act, Rev.Codes 1935, § 2990 et seq. At the time of sustaining the injuries the decedent was earning and receiving $20 per week as a salary. His father and mother applied to the Industrial Accident Board for compensation, claiming the right thereto as major dependents under section 2866, Revised Codes. Failing there, both on their original application and on their application for rehearing, they appealed to the district court, where, upon the same record, judgment went in their favor. The court found the claimants to be dependents and allowed compensation at the rate of $10 per week for the duration of the dependency, not exceeding the statutory period of 400 weeks. Section 2915. The appeal is from the judgment.

The only question arising on the appeal is whether, under the evidence, the claimants are major dependents within the meaning of section 2866, reading as follows: "'Major dependent' means if there be no beneficiary as defined in the preceding section, the father or mother, or the survivor of them, if actually dependent upon the decedent at the time of his injury, then to the extent of such dependency, not to exceed, however, the maximum compensation provided for in this act."

The evidence in the case is undisputed. Neither the employer nor the board introduced any testimony in addition to that before the board. The case hinges upon the legal sufficiency of claimants' evidence to establish their status as major dependents.

The record before the board on the first hearing shows that claimants reside at Fort Morgan, Colorado, and are the parents of ten children, including Dale V. Ross; three minor children aged 16, 15, and 13, respectively, were living with them at their home at the time of Dale's death; six had families of their own and therefore were unable to contribute to their parents' support. The father, Edward E. Ross, 55 years of age, has for a few years been afflicted with rheumatism and is unable to do any work. Viola Ross, the mother, 50 years of age, weighs 350 pounds and is afflicted with heart trouble. Both have been on federal relief since the fall of 1934, receiving $35 per month. They need $100 per month for their support and the support of their minor children.

For about ten years prior to his death, Dale lived with his parents most of the time and had worked in the beet fields with his father. For all of such work his father, Edward E. Ross, collected all of the money, amounting one year to as much as $1,200 but generally it was much less. When Dale was able to find employment away from home during the seasons when there was no work in the beet fields, he would frequently inclose a $5 bill, or a lesser sum of money, in letters sent to the parents or to his sister, who lived near the father and mother, and she would buy material and make clothes for the children living with their father and mother, the claimants here. This practice extended over a period of years.

Dale had been in Billings from February, 1935, until the time of his death. He was unemployed while there until May 3, 1935. He had received but one pay check under his employment with Morrison & Welch amounting to $39. Of this he paid $24 for board and room to his brother-in-law, Milo Gorley, with whom he was living while in Billings. At the time of his death he had $7 and some cents on his person; the remainder, or about $8, having been spent for clothing and other things for himself. He sent no part of the $39 to his parents, but told Mr. Gorley that he was going to send all of his next check to them and thereafter every other check.

On rehearing claimant Edward E. Ross made affidavit on May 2, 1936, that without the help of Dale he was unable to procure or take a contract to work beets during the year 1936; that Dale contributed to claimants all the money that he was able to earn except that which "barely gave him the necessaries of life"; that Dale stated to him and to his mother when he left home in the summer of 1934 "that when he was able to obtain a job that paid him wages that he would send every cent home that he could save." He also stated in his affidavit: "That this affiant and the said Viola Ross relied upon the support they expected to receive from the said Dale Ross as the federal relief they were obtaining temporarily was not enough to feed, clothe, or keep the said claimants and their minor children."

The board expressly declined to give any value to the statement testified to by Dale's brother-in-law to the effect that Dale intended to send every other check to his parents, because it was hearsay. It also found as a result of the first hearing that there was no evidence showing that Dale had ever made any promise to claimants that he would contribute to their support out of his earnings. It found that the earnings of Dale in the beet fields were used for the purpose of paying his board and room while living with his parents, and that in fact such earnings were not sufficient to pay his own living expenses, much less to aid his needy parents. The board denied compensation.

In its order after the rehearing the board condemned the statements in the affidavit of Edward E. Ross, to the effect that Dale had stated to claimants at the time he left their home in 1934 that, when he was able to procure employment, he would send every cent home that he could save, as untrue, giving as its reasons "that the claimants had ample opportunity to present previous to the decision of the board any statement of any promise made by their son to them, and none was presented." It adhered to its first opinion to the effect that Dale was dependent upon his parents instead of them being dependent upon him to any extent.

The district court found, as above noted, that the claimants are major dependents, within the meaning of section 2866, Revised Codes. Appellant contends that the court's action was erroneous because the weight of the evidence and the credibility of the witnesses are for the board to determine, and its conclusions on fact questions should not be disturbed by the courts. Where there is substantial conflict in the evidence, the general rule contended for by appellant is correct. But where, as here, the evidence is not in conflict, the case comes before the court in the nature of an agreed statement of facts, leaving but a question of law for determination. Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43; Ryan v. Industrial Accident Board, 100 Mont. 143, 45 P.2d 775.

It is true, as contended for by appellant, that the board is not obliged to accept testimony because it is not contradicted by other witnesses. Reid v. Hennessy Merc. Co., 45 Mont. 383, 123 P. 397. Courts have the right to disregard evidence if it is improbable or incredible. Jeffrey v. Trouse, 100 Mont. 538, 50 P.2d 872. But they cannot disregard uncontroverted credible evidence. Sylvain v. Page, 84 Mont. 424, 276 P. 16, 63 A.L.R. 528; Nichols v. New York Life Ins. Co., 88 Mont. 132, 292 P. 253; Piersky v. Hocking, 88 Mont. 358, 292 P. 725. And the board, as a fact-finding tribunal, is bound by the same rule. Johnson v. Johnson, 92 Mont. 512, 15 P.2d 842; Pierstorff v. Gray's Auto Shop, Idaho, 74 P.2d 171; Stepaneck v. Mark Twain Hotel Co., Mo.App., 104 S.W.2d 761.

There is nothing inherently incredible or improbable about the assertion in the affidavit of Edward E. Ross that Dale told claimants when he left home that he would send them all the money he could save. On the other hand, the probability of such an assertion is attested by the previous practice and custom of Dale to send money home when he was working and earning wages away from home. Unimpeached evidence, supported by all the circumstances, should not be condemned as untrue. Harwood v. Scott, 65 Mont. 521, 211 P. 316.

Generally, too, we recognize that, in passing upon the credibility of witnesses, the board occupies an advantage superior to that of the trial court or this court, when the review in the district court and here is upon the record alone. But that general rule does not apply where, as here, the evidence which is excluded as untrue is in the form of an affidavit. Newell v. Whitwell, 16 Mont. 243, 40 P. 866; Gibson v. Morris State Bank, 49 Mont. 60, 140 P. 76.

Was the board warranted in disregarding the statement of Gorley as to what Dale told him with reference to his intention to send his next check and every other one thereafter to his parents? The board is not bound by the technical rules of evidence. Section 2938, Rev.Codes. Hearsay may be accepted or rejected in the discretion of the board. 71 C.J. 1072. However, the statement here came within an exception to the hearsay rule. The point at issue was the state of mind of Dale with reference to his intention, or lack of it, to contribute to the support of his parents. This statement was admissible under section...