State ex rel. Magelo v. Industrial Accident Board

• Decision Date: 12 June 1936
• Docket Number: 7561.
• Parties: STATE ex rel. MAGELO v. INDUSTRIAL ACCIDENT BOARD et al.
• Court: Montana Supreme Court

59 P.2d 785

102 Mont. 455

STATE ex rel. MAGELO v. INDUSTRIAL ACCIDENT BOARD et al.

No. 7561.

Supreme Court of Montana

June 12, 1936

Rehearing Denied July 22, 1936.

Original proceeding for a writ of supervisory control by the State, on the relation of Charles Magelo, against the Industrial Accident Board of the state of Montana and the District Court of the Fourteenth Judicial District of Montana in and for the county of Musselshell.

Motion to quash sustained and proceeding dismissed.

F. W Mettler, of Roundup, and Hugh R. Adair, of Helena, for relator.

W. W Mercer, of Roundup, and S. C. Ford, of Helena, for respondent.

ANDERSON Justice.

This is an original proceeding seeking a writ of supervisory control against the Industrial Accident Board and the district court of Musselshell county. The respondents have appeared by motion to quash and answer, which denies many of the allegations of the relator's affidavit.

On March 6, 1930, Charles Magelo, who had theretofore been an employee of the Roundup Coal Mining Company, filed with the Industrial Accident Board a claim for compensation. On March 17 following, a hearing was had before the board at Roundup Mont., on the application. The claimant was present in person and represented by counsel, Charles F. Huppe, at the hearing. Testimony was there introduced on behalf of the employee and the employer. Thereafter, on July 8, 1930, a decision of the board was rendered, denying claimant's application on the ground that he had failed to file written notice of the alleged accident and injury within the time allowed by law, and thereupon his application was denied. No motion for rehearing was made at that time, and nothing further was done in connection with the claim until on March 14, 1933, Magelo filed with the board a "petition to reopen the case," in which he prayed the board to investigate and determine the validity of his compensation claim. Theretofore, during the regular session of the Legislature in the year 1933, a bill, chapter 85 of the Laws of 1933, authorizing and empowering the Industrial Accident Board to allow the filing of a claim for compensation by Magelo was enacted. Subsequent to the filing of the petition to reopen the case, the Roundup Coal Company filed in this court a petition for writ of prohibition to restrain the board from taking any further action in the matter pending before it relative to this claim. The counsel who now represents the claimant and relator appeared in response to an alternative writ, and moved this court to quash the writ, and on June 3, 1933, by decision of this court the alternative writ of prohibition was made permanent. State ex rel. Roundup Coal Min. Co. v. Industrial Accident Board, 94 Mont. 386, 388, 23 P.2d 253. A peremptory writ of prohibition was issued out of this court on July 17, 1933, and served upon the Industrial Accident Board.

On August 31, 1933, Magelo filed in the office of the respondent board a petition for rehearing. No action was taken by the board on this petition, and on its refusal to act an application for a writ of mandamus was filed in the district court of Musselshell county on November 23, 1934, to compel the board to act upon this petition for rehearing. This application came on for hearing and evidence was offered on behalf of the respective parties, and after the conclusion of the hearing a judgment was entered dismissing the application. Thereafter an appeal from this judgment of dismissal was perfected to this court, and a transcript on appeal has been lodged with its clerk. An order was secured from this court extending the time within which the appellant might file his brief, and within such time application was made to this court for the present writ. The facts as related thus far are without dispute. Such additional facts as it is necessary to notice will receive attention throughout the opinion at appropriate places.

In his petition the relator has by reference made the transcript on appeal in the mandamus proceeding and also the records of the Industrial Accident Board with reference to the claim, which were received in evidence in that proceeding, a part of this petition, and all of these documents and papers are before us.

Relator seeks by this proceeding to have the respondent court reverse its judgment dismissing the application for writ of mandate, and the respondent board to grant the petition for rehearing filed on August 31, 1933, and to compute and allow his claim for compensation on account of his alleged permanent disability resulting from an asserted accidental injury said to have occurred on January 14, 1930.

Counsel in support of the motion to quash earnestly argue that this is not a proper case for the granting of a writ of supervisory control. In view of our conclusion, it is unnecessary for us to consider this question, and therefore we shall assume for the purposes of this opinion, but not decide, that this is a proper case for the issuance of such writ.

Counsel for the relator contend that no notice of the decision rendered on July 8, 1930, was ever served upon relator, Magelo. They argue that, there being no valid service, his petition filed in the year 1933 was within time. Opposing counsel argue otherwise. Section 2955, Rev.Codes 1921, provides that "at any time within twenty days after the service of any order or decision of the board, any party or parties aggrieved thereby may apply for a rehearing" upon one or more of the grounds enumerated in the section. No question is here raised as to the sufficiency of the petition on its face.

The record of the Industrial Accident Board discloses that the claim was filed by Charles F. Huppe, as attorney for Magelo, and that he participated in the hearing before the board. In the files of the board is a carbon copy of a letter stating that a copy of the decision was transmitted to Mr. Huppe therewith. This is under date of July 10, 1930. The undisputed testimony received on the hearing for the writ of mandate is to the effect that Huppe in the summer of 1930 and about the month of August had in his possession a copy of this decision. Magelo testified on that proceeding that he never received a notice of the decision. The file of the Industrial Accident Board contains a letter under date of August 6, 1930, from Charles F. Huppe which indicates clearly that he at least at that time had received notice of the decision. Huppe died before the hearing in the district court and hence his testimony was not available.

On September 16, 1930, Magelo wrote the board inquiring about his case, and in this letter he requested the board to advise him as to "what report was that the state board turned in on my case and I would like to know on what grounds has compensation been denied to me." A carbon copy of a letter found in the board's file states that on September 24, 1930, a letter was addressed to Magelo informing him that a copy of the board's decision had been sent to Huppe, his attorney, and that if he would call on him, the attorney would show him the decision and explain the matter. The court in the mandamus proceeding found that notice of the decision was served upon the attorney for Magelo more than twenty days prior to the date of the filing of the petition for rehearing, and further found that the order was never served personally upon him.

Counsel for relator as a basis for their argument seize upon a part of a sentence appearing in the decision of this court in the case of Shugg v. Anaconda Copper Min. Co., 100 Mont 159, 46 P.2d 435, 438, wherein it was said: "Under section 2955, therefore, the aggrieved party is in the same position as one moving for a new trial in an ordinary case, and his application relates only to the condition and situation prevailing at the time of the original hearing." Counsel rely on that part of the sentence appearing prior to the conjunction "and." Basing their argument on this statement, they contend that the statutes and decision of this court relative to the service of notice of intention to move...