Williams v. Anaconda Copper Mining Co.

• Decision Date: 02 February 1934
• Docket Number: 7185.
• Citation: 29 P.2d 649,96 Mont. 204
• Parties: WILLIAMS v. ANACONDA COPPER MINING CO.
• Court: Montana Supreme Court

29 P.2d 649

96 Mont. 204

WILLIAMS v. ANACONDA COPPER MINING CO.

No. 7185.

Supreme Court of Montana

February 2, 1934

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Proceeding under the Workmen's Compensation Act by Arthur Williams claimant, opposed by the Anaconda Copper Mining Company, a corporation, employer. From a judgment dismissing the claimant's appeal from the order of the Industrial Accident Board refusing compensation, claimant appeals.

Affirmed.

Harlow Pease and R. Lewis Brown, both of Butte, for appellant.

D. M Kelly, D'Gay Stivers, John V. Dwyer, John A. Groeneveld J. T. Finlen, Jr., and H. E. Gardiner, all of Butte, for respondent.

ANDERSON Justice.

Plaintiff instituted this proceeding in an attempt to secure compensation under the Workmen's Compensation Act. He was employed by the defendant on June 14, 1929, the date on which he asserts an injury was sustained entitling him to compensation. He continued working for the defendant for a few days after that date. Thereafter he was a patient in the tuberculosis sanitarium at Galen from October 15, 1929, to May 11, 1931.

On March 5, 1930, plaintiff wrote a letter to the Industrial Accident Board, seeking compensation, wherein he gave the history of his case. The board on March 10 of the same year acknowledged the receipt of this letter, and informed him that, as he had failed to file a claim before December 15, 1929, any claim thereafter filed would be "barred by the statute of limitations in the Compensation Act." Also it was stated therein that a copy of the letter would be forwarded to the adjuster of the defendant company. On March 17, 1930, the company wrote the board acknowledging the receipt of the copy of the letter to the claimant, inclosing a copy of the report from their doctor, and further stating that "no claim having been filed within the statutory time, we dispute the claim."

Plaintiff again wrote the board on July 17, 1931, demanding a hearing in his case, and mentioned therein a personal interview with the board on July 2 preceding, at which time he likewise sought a hearing. On October 20, 1931, the following documents were received by the board from the claimant: A certificate by Dr. Vidal as to the physical condition of claimant while in the institution at Galen; a copy of the statement given by the company doctor as to the injury, if any; an affidavit from one Sweetman, who was working with the claimant at the time of the alleged injury, and a report by Dr. Schwartz as to the then physical condition of claimant. There appears in the record a sworn claim, dated October 19, 1931, signed by claimant, the exact date of its receipt not appearing in the record. However, on October 22, 1931, the board wrote a letter to the claimant wherein the receipt of this claim and the other documents received on October 20 is acknowledged by it. The board, on October 31, 1931, issued a notice of hearing of the application of claimant for compensation on November 6, 1931, at Butte. Claimant appeared at the hearing, and testified before the chairman of the Industrial Accident Board, as did also Sweetman, the man with whom he was working at the time of the alleged injury on June 14, 1929. The documents received by the board on October 20, 1931, other than the claim, were read into the record without objection. At this hearing the defendant was represented by counsel. After the close of the testimony on behalf of claimant, counsel for defendant made the following inquiry: "Has there been a claim filed in this case?" to which the chairman of the board, who, as stated, was conducting the hearing, responded: "No, there has been no claim filed as far as our record shows." The chairman of the board thereupon inquired of counsel for defendant as follows: "Have you anything, Judge Dwyer?" to which counsel responded: "We really haven't anything to meet there that I know of."

Following the hearing, the Industrial Accident Board rendered a decision, wherein it was decided that plaintiff had no claim against the defendant by reason of his failure to file a sworn claim in writing within six months after the injury, as provided by section 2899, Rev. Codes 1921.

Plaintiff appealed from the decision of the board to the district court of Silver Bow county. The appeal was heard upon the record made before the board. The defendant interposed a motion to dismiss the appeal on the ground that plaintiff's claim was barred because of his failure to give notice to his employer in writing of his injury within the time provided by section 2933, Revised Codes 1921; and on the further ground that no sworn claim was filed by plaintiff within six months after the happening of the alleged accident, as required by the provisions of section 2899, Id. The district court granted the motion to dismiss the appeal, and denied the claim of plaintiff upon the ground that plaintiff had failed to file the notice of injury in writing with his employer within the time prescribed by section 2933, supra. Thereafter a judgment of dismissal was entered in accordance with the order of the district court. The appeal is from this judgment.

Section 2899, supra, provides: "In case of personal injury or death, all claims shall be forever barred unless presented in writing under oath to the employer, the insurer, or the board, as the case may be, within six months from the date of the happening of the accident, either by the claimant or some one legally authorized to act for him in his behalf."

Section 2933 provides: "No claims to recover compensation under this act for injuries not resulting in death shall be maintained unless, within sixty days after the occurrence of the accident which is claimed to have caused the injury, notice in writing, stating the name and address of the person injured, the time and the place where the accident occurred, and the nature of the injury, and signed by the person injured, or some one in his behalf, shall be served upon the employer or the insurer; provided, however, that actual knowledge of such accident and injury on the part of such employer or his managing agent or superintendent in charge of the work upon which the injured employee was engaged at the time of the injury shall be equivalent to such service."

Plaintiff contends that the defendant in this case, by failing to file an answer before the board pleading the above-quoted statutes, or in any manner affirmatively to claim the benefits of the statutes during the hearing, thereby waived the benefits conferred by them, and that the board and the district court should have disregarded these statutes and proceeded to allow plaintiff compensation. The foregoing statement of the contention of plaintiff embodies all the questions raised by the specifications of error in his brief.

This court, in the case of Chmielewska v. Butte & Superior Mining Co., 81 Mont. 36, 261 P. 616, 617, had under consideration section 2899, supra, and in the opinion there promulgated it was said: "As plaintiff's claim was not filed within the period prescribed by the statute, she cannot recover. The statute is mandatory, and a compliance with its requirements is indispensable to the existence of the right to maintain proceedings to compel the payment of compensation"--citing cases.

Again this court had under consideration section 2933, in the case of Maki v. Anaconda Copper Mining Co., 87 Mont. 314 287 P. 170, 173; and, after referring with approval to the Chmielewska Case, supra, and quoting therefrom as to the effect of that statute, said: "So likewise are the provisions of section 2933 mandatory and indispensable to the maintenance of a claim." However, actual knowledge of the injury by the employer or certain officers or agents designated by the statute is equivalent to the service of...