Willis v. Pilot Butte Mining Co.

Decision Date08 May 1920
Docket Number4542.
Citation190 P. 124,58 Mont. 26
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Proceedings under the Workmen's Compensation Act by Martha Willis for compensation for the death of her husband, W. A. Willis, the employé, opposed by the Pilot Butte Mining Company, the employer, and the Ætna Life Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board the award affirmed by the district court, and from its judgment the employer and insurer appeal. Affirmed.

Frank & Gaines, of Butte, for appellants.

H. A Tyvand, of Butte, for respondent.


On March 20, 1916, W. A. Willis, while employed as station tender for appellant mining company, was shot by Nathan Brooks, mine foreman for said company, and thereafter died. Willis was subject to the provisions of the Workmen's Compensation Act, and respondent, for herself and her minor child, filed with the Industrial Accident Board her proof of injury and death, and application for compensation. Two separate hearings were had before the board, and on August 30, 1919, award was made in accordance with the application. The company and its insurance carrier appealed to the district court of Silver Bow county, and, after a hearing, the court found in favor of respondent and entered judgment in accordance with the award made by the board. The matter is before us on an appeal from the judgment of the district court.

It was in the district court, and is here, conceded that the death of Willis resulted from an accident or fortuitous event arising in the course of his employment, and the only question presented is: Did the injuries resulting in the death of Willis arise "out of" his employment?

We are asked to try the case anew and, disregarding the findings of the board and of the trial court, to determine the question so presented, as an original proceeding, on the record made in the district court and before the board, as provided in section 22 (d) of the Compensation Act (chapter 96, Laws of 1915), which section reads as follows:

"Either the board, or the appellant [applicant], or any adversary party, if there be one, may appeal to the Supreme Court. * * * When any such cause is so appealed it * * * shall be tried anew by said Supreme Court upon the record made in said district court and before said board. * * *"

It is urged that this court stands in the same position as a district court on an appeal from a justice's court and that the trial here is a trial de novo. But this cannot be. Section 2, art. 8, of our Constitution, provides:

"The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only. * * *"

And "shall have power * * * to issue and to hear and determine * * * such * * * original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction." Section 3, art. 8.

It "shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law" (section 2, art. 8), and shall have power to issue, hear, and determine the six original writs named in section 3 of article 8.

"The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." Section 29, art. 3, Constitution of Montana.

In re Weston, 28 Mont. 207, 72 P. 512, this court said:

" 'The source of all power vested in the Supreme Court is the Constitution of the state, and in it must be found the measure of jurisdiction.' * * * The power to issue, hear, and determine the six original writs enumerated above marks the limit of the original jurisdiction of this court."

It will be readily seen, therefore, that the Legislature was without authority to grant to this court jurisdiction to try the cause "anew" as though the matter was originally before us, and, to the extent that section 22(d) of the Compensation Act attempts to confer such jurisdiction, it is unconstitutional. In the language of the opinion in the Weston Case:

"The full measure of the relief which may be granted is a review of the decision of the lower court and a judgment of this court affirming, modifying, or reversing the decision. Further than this we cannot go."

Section 22(b) of the act provides that, on an appeal to the district court from the judgment of the board, "the trial of the matter shall be de nova (de novo)," but further provides that--

"Upon such trial the court shall determine whether or not the board regularly pursued its authority, and whether or not the findings of the board ought to be sustained, and whether or not such findings are reasonable under all the circumstances of the case," and provides further, "The court may, upon the hearing, for good cause shown, permit additional evidence to be introduced, but, in the absence of such permission from the court, the cause shall be heard, on the record of the board as certified to the court by it," and (c) "If the court shall find from such trial, as aforesaid, that the findings and conclusions of the board are not in accordance with either the facts or the law, or that they ought to be other or different than those made by the board, or that any finding and conclusion or any order, rule or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises."

As district courts are courts of original jurisdiction, it was within the constitutional power of the Legislature to provide that the trial in the district court shall be de novo, as indicated; but the power given the district court is that of review, rather than a trial anew. That this is true is emphasized by the provisions of section 20(h) that--

"No orders or decisions of the board shall be subject to collateral attack, and may be reviewed or modified only in the manner provided herein."

The district court of Silver Bow county followed the procedure outlined in the act, and made findings "that the said Industrial Accident Board as far as it proceeded regularly, pursued its authority; that the findings of the said Industrial Accident Board ought to be sustained and that its findings are reasonable under all the circumstances of the case; that the accident to W. A. Willis, which resulted in his death, arose out of his employment for the Pilot Butte Mining Company, and therefore compensation should be awarded to the widow of W. A. Willis, Martha Willis, as per the provisions of the Workman's Compensation Act," and rendered judgment accordingly, without making any further findings in the premises. Our duty, then, is but to determine whether the evidence before the board clearly preponderates against its findings, as adopted by the court; if not, we must affirm the judgment. The rule that the Supreme Court will not reverse the findings of the district court, except where the evidence clearly preponderates against them, is so well settled in this jurisdiction as to hardly require repetition.

Willis was station tender in appellant company's mine; Brooks, the night foreman with authority over Willis. Just prior to the shooting, Brooks visited Willis on the 2,600-foot level and communicated to him an order of the day foreman that he (Willis) should remain on shift until relieved. According to Brooks, an altercation arose concerning his action in discharging one Shannon, Willis accusing him of trying to "frame up on" him as, he contended, Brooks had done on Shannon. Brooks then ordered Willis to signal for the cage to be raised to the next level that he might make an inspection there. Willis gave some signal and entered the cage with Brooks, which he had a right to do. Whether Willis gave the correct signal which was misunderstood by the engineer, or whether he gave the signal to hoist to the surface, could not be ascertained. The cage continued to the surface, and, on leaving it, the two men immediately met in personal encounter. Who was the aggressor is not entirely clear; nor is the evidence satisfactory as to the cause of the trouble. According to Brooks' version of the affray, while he gives no satisfactory explanation for the act, "Willis attempted to grab me and get my lamp, which he finally did"; that he then broke away and ran for the office. On the other hand, Willis being advised that he could not live, made the following statement:

"Since I am going to die, I want you to know just what happened. We were coming up on the cage together and, as we got off the cage on the surface, Brooks hit me on the jaw with his heavy carbide lamp. I clinched him and got the lamp, but he broke away and I after him through the side door of the boiler room, through into the engine room. When I reached the front door of the engine room I could not see him, and thought to myself I'd 'bunch it' (meaning quit). So I started for the dry, and, just as I turned off the trail to leave his lamp on the step of the office, Brooks opened the door with a gun in his hand and aimed at me. I was startled at sight of the gun, but did not think he was going to 'blast' as he held the gun on me for fully a minute before he shot me. I backed towards the dry, and he followed and shot me again and was going to shoot the third time, when I said, 'Well, I guess you got me,' and I fell." Asked the question: "Was there any other trouble?" Willis replied: "No trouble at all; he killed me for

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