State ex rel. Morgan v. Industrial Acc. Bd.

• Decision Date: 20 August 1956
• Docket Number: No. 9629,9629
• Citation: 300 P.2d 954,130 Mont. 272
• Parties: STATE of Montana ex rel. Johnston E. MORGAN, Relator and Respondent, v. INDUSTRIAL ACCIDENT BOARD of the State of Montana, Appellant.
• Court: Montana Supreme Court

Page 954

300 P.2d 954

130 Mont. 272

STATE of Montana ex rel. Johnston E. MORGAN, Relator and Respondent, v. INDUSTRIAL ACCIDENT BOARD of the State of Montana, Appellant.

No. 9629.

Supreme Court of Montana.

Submitted April 26, 1956.

Decided Aug. 20, 1956.

Ralph J. Anderson and Stanley P. Sorenson, Helena, for appellant. Ralph J. Anderson argued orally.

Joseph M. Goldman and Lee A. Jordan, Missoula, for respondent. Lee A. Jordan argued orally.

BOTTOMLY, Justice.

Proceeding under Workmen's Compensation Act, R.C.M.1947, Sec. 92-101 et seq., by Johnston E. Morgan, claimant. Opposed by the Industrial Accident Board. Appeal by the Industrial Accident Board from an order and decree in favor of claimant and relator, Morgan.

Relator, Johnston E. Morgan, is now and has been a resident of Missoula, Missoula County, Montana, for some 18 years where he lives with his wife and child.

The Union Construction Company is a corporation, incorporated under the laws of Montana, with its only place of business and office in the City of Missoula, Montana. The corporation is authorized to engage in general construction business of every nature including construction work upon highways and roads both within and without the State of Montana.

Relator was employed on or about May 18, 1955, by the Union Construction Company, a corporation, at Missoula, Montana, and worked for said company to the 8th day of July, 1955; all of said work was performed within the boundaries of the State of Montana; relator laid off until August 15, 1955, on account of soreness of his back; relator returned to work for said corporation on August 15, 1955, and was assigned by said corporation to the job of tending the corporation's rock crusher used in road building operations on a road being constructed by said corporation for the Diamond Match Company which has its plant and mill located in Mineral County, Montana.

While engaged in his usually assigned work on this road construction, and being at that particular time across the line in the State of Idaho, and while clearing the rock crusher of a piece of wood, relator's sleeve was caught by a splice in the conveyor belt, resulting in the injury to relator's right side, back, neck, shoulder and the loss of his right arm.

The record discloses that during said employment relator left each morning for work from Montana and returned each evening after work to Montana; that relator was paid for his work for the Union Construction Company by said company checks, which checks were drawn on a Montana bank; that after the accident relator was removed to St. Patrick's Hospital in Missoula and was there attended by doctors of the Western Clinic of Missoula, Montana.

Notice of the accident was had by the employer the day of its occurrence as relator's boss was right there at the time of the accident.

On or about September 8, 1955, relator presented his verified claim for compensation to the Industrial Accident Board, Sam W. Mitchell Building, Helena, Montana. September 28, 1955, the Industrial Accident Board of the State of Montana, by Mr. Robert F. Swanberg, Chairman, rejected relator's claim stating in part, '* * * we shall not assume any jurisdiction whatsoever in this matter, nor shall we make any formal Orders to take any action unless we are compelled by the courts to do so.' At the same time the Board returned relator's claim to his attorneys.

Thereafter relator filed his petition for an alternative writ of mandate in the court below; writ was issued and served, answer and return made, and hearing had, and the matter submitted to the court. Neither party requested or proposed findings of fact or conclusions of law, nor did either party waive findings. Briefs were filed and examined and the court then made and filed its findings of fact and conclusions of law. Neither party took or made any exceptions thereto in the court below. The court then made and entered judgment, ordering and adjudging that a writ of mandate issue, commanding the Industrial Accident Board of the State of Montana to immediately assume jurisdiction in the said workman's compensation claim of the relator, Johnston E. Morgan, and that said Industrial Accident Board proceed with due diligence to either commence payment of workmen's compensation to relator or, in the alternative, that said Board afford the relator a hearing in accordance with the provisions of the Workmen's Compensation Act of the State of Montana. From this judgment the Industrial Accident Board has appealed.

The facts as above stated are simple and are not materially contested. The Board contends that since the accident and resulting injury occurred outside the State of Montana and within the borders of Idaho it has no jurisdiction thereof; that the employer was covered by insurance in Idaho and that the injured workman should seek relief under the compensation law of Idaho.

Our Workmen's Compensation Law was enacted for the protection of the workman as well as the employer. The Act implies that the first duty of the Industrial Accident Board is to administer it so as to give the employee the greatest possible protection consistent with the purpose of the Act. Compare Miller v. Aetna Life Ins. Co., 101 Mont. 212, 220, 53 P.2d 704. It is the theory of our Workmen's Compensation Law that loss occasioned by injury to a workman shall not be borne by him alone, but by the industry and indirectly through the cost of the product by the public. Compare Murray Hospital v. Angrove, 92 Mont. 101, 107, 10 P.2d 577; Shea v. North-Butte Min. Co., 55 Mont. 522, 529, 179 P. 499.

R.C.M.1947, Sec. 92-838, provides that: 'Whenever this act or any part or section thereof is interpreted by a court, it shall be liberally construed by such court.' This court has consistently held that this means liberally construed in favor of a claimant. Compare Grief v. Industrial Acc. Fund, 108 Mont. 519, 526, 93 P.2d 961; Wirta v. North Butte Min. Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964; Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 P. 880; Gugler v. Industrial Accident Fund, 117 Mont. 38, 47, 157 P.2d 89; Tabor v. Industrial Accident Fund, 126 Mont. 240, 242, 247 P.2d 472; McCoy v. Mike Horse Mining & Milling Co., 126 Mont. 435, 252 P.2d 1036; Levo v. General-Shea-Morrison & Liberty National Ins. Co., 128 Mont. 570, 280 P.2d 1086.

Keeping the foregoing principles in mind, we find that the law, R.C.M.1947, Sec. 92-410, as far as pertinent here, provides "Employer' means * * * every person, firm, * * * and private corporation * * * who has any person in service, in hazardous employment, under any appointment or contract of hire, expressed or implied, oral or written, and the legal representative of any deceased employer or the receiver or trustee thereof.' Emphasis supplied.

R.C.M.1947, Sec. 92-411, as far as pertinent here, provides: "Employee' and 'workman' are used synonymously and mean every person in this state * * * who is in the service of an employer as defined by the preceding section [Sec. 92-410], under any appointment or contract of hire, expressed or implied, oral or written, * * * but excluding any person whose employment is both casual and not in the courses of the trade, business, profession or occupation of his employer, unless such employer has elected to be bound by the provisions of the compensation law, in which case all employees are included, whether their employment is casual or otherwise, * * *.' Emphasis supplied.

Where, as here, the employer of the injured employee has become bound by and subject to the provisions of Compensation Plan No. 3, the Industrial Accident Fund 'shall be liable for the payment of compensation in the manner and to the extent hereinafter provided 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 * * *.' See R.C.M.1947, Sec. 92-614.

R.C.M.1947, Sec. 92-1101, provides in part: 'Every employer, subject to the provisions of compensation plan No. 3 shall, in the manner and at the times herein specified, pay into the state treasury, in accordance with the following schedule, a sum equal to the percentage of his total annual payroll specified in this section * * *.'

R.C.M.1947, Sec. 92-207, provides in part: 'Every employer engaged in the industries, works, occupations, or employments in this act specified as 'hazardous', shall, on or before the first day of July, 1947, if such employer be then engaged in such hazardous * * * work * * * or, if such employer be not so engaged on said date, shall, before entering upon such hazardous work, * * * elect or choose which of the plans mentioned in this act he or it will be bound by. * * * and a notice of such election, with the nature thereof shall be posted in a conspicuous place in the place of business of such employer, and a copy of such notice, together with an affidavit of such posting shall be filed with the board.' The statute provides for a penalty if the employer fails to make such election or choice within the time provided, and that the failure to provide compensation for each employee shall be deemed a separate offense for the purpose of this Act.

In reading the workmen's compensation acts of the different states one finds that some are held to be optional, some contractual, some compulsory, but no matter how denominated the intent of all such laws is to reach and cover the status of the employer-employee relationship, compare Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, and the sure protection of the workman and his dependents, and in fixing a limited liability of the employer and in assuring the employee of compensation coverage in case of accident, injury or death.

Here the employer, Union Construction Company, a Montana corporation, had and has its only office and place of business in Missoula. Relator now resides with his family in...