Williams v. Brownfield-Canty Carpet Co.

Decision Date10 November 1933
Docket Number7160.
Citation26 P.2d 980,95 Mont. 364
CourtMontana Supreme Court

Rehearing Denied Dec. 5, 1933.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Proceeding under the Workmen's Compensation Act by Johanna Williams for the death of her husband, John P. Williams, opposed by the Brownfield-Canty Carpet Company, employer, and the American Surety Company, insurance carrier. From a judgment affirming an order of the Industrial Accident Board granting compensation to claimant, employer and insurance carrier appeal.


John K Claxton, of Butte, for appellants.

H. J Freebourn and N. A. Rotering, both of Butte, for respondent.

STEWART Justice.

This is an appeal from a judgment of the district court of Silver Bow county affirming an order of the Industrial Accident Board granting compensation to Johanna Williams, widow of John P Williams, deceased.

On March 13, 1931, Johanna Williams filed a claim for compensation. She alleged the death of her husband, John P Williams, an employee of the Brownfield-Canty Carpet Company, of Butte. The facts briefly stated are as follows: The carpet company was enrolled under plan 2 of the Workmen's Compensation Act (Rev. Codes 1921, § 2816 et seq., as amended), and the American Surety Company was insurer. On January 26, 1931, John P. Williams was an employee of the carpet company. His usual work was that of a carpet layer. It was the custom of the company to send him out to make collections when there was no work in his particular line. On the day in question he was directed by his employer to make certain collections. He proceeded to the home of William P. Lightfoot, in Walkerville. Lightfoot lived on the lower floor of a residence at 412 West Daly street, and Mrs. Berryman, mother of Mrs. Lightfoot, resided on the upper floor. Williams descended an outside stairway, then covered with ice. He fell and struck his back and the back of his neck. No one saw the accident but Mrs. Berryman, and Mr. and Mrs. Lightfoot heard the noise or thump when his body struck the steps of the stairway. Two of the steps were broken. Mrs. Berryman called to Williams and asked if he was hurt; he replied that he was. That evening Williams returned to his home and complained to his wife that he had fallen and hurt himself. From that time forward he suffered severe pains in his neck and back, was unable to sleep at night, and constantly complained to his wife. He had vomiting spells and a discharge from his ear. On the night of February 2 he lapsed into unconsciousness; a doctor was called; he was taken to the hospital, and died on February 4 without regaining consciousness. Drs. Canty and McMahon performed an autopsy on the head only, but failed to find any indications of external injury.

Mrs. Williams testified that her husband had always been strong and healthy, had worked steadily until the time of the accident, and that he did not have any sickness or physical trouble of any kind prior to the accident. The doctors diagnosed the case as streptococcus meningitis, and testified that it was caused by germification. Dr. McMahon and Dr. Canty testified that the man died from streptococcus meningitis, but they did not say, and would not say, that the infection came from the injury. Each one did say, however, that his "final opinion" was that the fall had something to do with the infection.

The Industrial Accident Board made findings or conclusions to the effect that the fall either directly brought about the death or was the cause of weakening the condition of his head to such an extent that the disease developed and killed him. The findings and decision of the board must be sustained if there is any evidence to support them. This principle now constitutes a recognized rule in this state. Brajcich v. Republic Coal Co., 94 Mont. 568, 23 P.2d 337. See, also, State v. Rocky Mountain Elevator Co., 52 Mont. 487, 158 P. 818; Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 P. 947; Willis v. Pilot Butte Mining Co., 58 Mont. 26, 190 P. 124; Morgan v. Butte, etc., Co., 58 Mont. 633, 194 P. 496; Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 P. 270.

Appellants assert that the award by the board is based upon conjecture, speculation, and surmise, and therefore should be set aside. The fact of the fall was not established by conjecture, speculation, or surmise. That fact was well established and not denied. The same may also be said of the immediate and continuing disability. These matters were questioned at the trial and on this appeal, but nowhere were they actually contradicted by evidence. All admit the attack of meningitis and that it was the immediate cause of his death. The only break in the sequence of clearly established facts is the gap between the injury and the disease. Was the meningitis traceable to the injury? Was it established at the trial that there was connection between the injury and the disease? The board found that there was connection, and that the fall brought about the death of the deceased.

Appellants assert that, because the doctors did not say positively that the disease came as a direct result of the injury, the matter was left open to conjecture and surmise. The doctors both testified that in their opinion the injury had something to do with the disease, and, of course, therefore with the death. It is true that there was no direct testimony by any one that one was the result of the other, but the board had a right to consider all of the circumstances as well as the direct evidence. The law does not require demonstration or such a degree of proof as, excluding the possibility of error, produces absolute certainty, because such proof is rarely possible. Moffett v. Bozeman Canning Co. (Mont.) 26 P.2d 973, decided November 10, 1933.

We cannot say that there was no evidence before the board and the court to support the findings. There were facts and pertinent circumstances in the record sufficient, if believed, amply and reasonably to support the findings of the board. Having made the findings, and believing, as we do, that there was evidence to support them, they must stand. Compare Moffett v. Bozeman Canning Co., supra. See, also, Gilmore v. Ostronich, 48 Mont. 305, 137 P. 378, and Exchange State Bank v. Occident Elevator Co., 95 Mont. 78, 24 P.2d 126.

Thus far we have treated the case as though no question had been raised as to the jurisdiction of the board. Appellants, however, have raised that very point. They contend that deceased was not protected by the provisions of the Compensation Act, and that the Industrial Accident Board was without jurisdiction. In support of their contention they cite Page v. New York Realty Co., 59 Mont. 305, 196 P. 871, and Moore v. Industrial Accident Fund, 80 Mont. 136, 259 P. 825, 826.

In order to treat this matter intelligently, we must have in mind the Compensation Act as construed and administered in this state. Soon after the act went into effect, the question of division of coverage as between employees came in question. The board took the position that, if any employees of a given employer were under the provisions of the act they all were, and proceeded upon that theory. In so doing they were acting in accordance with an opinion of the Attorney General, found in volume 6 of the Reports and Official Opinions of the Attorney General, at page 370. In 1919 the Legislature made direct declaration on that subject. Chapter 100, Laws of 1919. The section originally standing as section 4 of the Act of 1915, c. 96, is now section 2847, Revised Codes of 1921. The amended section carries the following additional provision: "And any employer having any workmen engaged in any of the hazardous works or occupations herein listed shall be considered as an employer engaged in hazardous works and occupations as to all his employees." This amendment by legislative adoption recognized the construction placed upon the act by the Attorney General and the board, and authorized a continuance of the administration of the act with that principle in effect. The board, however, again requested the Attorney General for a legal construction of...

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