Morgan v. Butte Central Mining & Milling Co. , 58 Mont. 633 ( 1920 )

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

On July 12, 1916, one Edward Morgan, an employee of the defendant mining company, met death in an accident arising out of and in the course of his employment. All of the parties hereto are subject to the provisions of “plan two” of the Workmen’s Compensation Act (Chap. 96, Laws 1915). Decedent had no wife, child, father or mother. P. F. Morgan, a brother forty-nine years of age, filed with the board, in the manner and within the time provided for by the Act, a claim for compensation as a “minor dependent” on the ground that he was, at the time of the accidental death of his brother, an invalid dependent upon, and receiving support from, decedent. Numerous affidavits were filed, in support of the claim, among them those of four physicians to the effect that claimant was in no condition to perform physical or mental labor.

The insurer contested the claim on the ground that, under the provisions of the Act, a brother of an injured employee was entitled to compensation only when under the age of sixteen years, and upon the further ground that claimant was not, at the time of the accident, nor a long time prior thereto, dependent upon the decedent, but, on the contrary, was an able-bodied man capable of earning his own living. A hearing was had and oral testimony introduced. Dr. Horst was the only physician called to the stand. The board commented at length upon, but did not decide, the question as to whether a brother over the age of sixteen years could, under any circumstances, be awarded compensation, but found that claimant was not an invalid within the meaning of the term as used in the Act, and rejected the claim.

An appeal was taken to the district court of Silver Bow county, and it was there stipulated that the matter should be heard and determined on the record as made before the board and the briefs of counsel. The district court in its findings declared that “the findings and conclusions of the board are not in accordance with either the facts or the law,” set the action of the board aside, and awarded compensation. This appeal is from the judgment of the district court.

The first question which suggests itself to our minds, though not urged by counsel, is whether, under our Act, claimant is entitled to compensation no matter what his physical or mental condition was at the time of the accidental death of his brother.

Section 16 of the Act provides that: “Every' employer and insurer who shall become bound by * * * plan Number two * * * shall be liable for the payment of compensation * * * 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, or, in the case of his death from such injury, to his beneficiaries, if any; or, if none, to his major dependents, if any; or, if none, to his minor dependents, if any.” The terms here used are defined in section 6 of the Act:

“Sec. 6 (1). ‘Beneficiary’ means and shall include a surviving wife or husband * * # a surviving child or children under the age of sixteen years and an invalid child or invalid children over the age of sixteen years. * * *

“Sec. 6 (m). ‘Major dependent’ means if there be no beneficiaries, * * * the father and mother, * * # if actually dependent to any extent upon the decedent at the time of his injury.

“Sec. 6 (n). ‘Minor dependent’ means if there be no beneficiary, * * * and if there be no major dependent, * * * the brothers and sisters, if actually dependent upon the decedent at the time of his injury.”

“Sec. 6 (o). ‘Invalid’ means one who is physically or mentally incapacitated.”

Section 7 (a) then provides: “In computing compensation to children and to brothers and sisters, only those under sixteen years of age, or invalid children over the age of sixteen years, shall be included, and, in the case of invalid children, only during the period in which they are under that disability * * * after which payment on account of such person shall cease. Compensation to children, or brothers or sisters, * * * shall cease when such persons reach the age of sixteen years.”

In the absence of the last clause quoted, the term “invalid” applies only to a child or children, and brothers and sisters over the age of sixteen years are clearly not entitled to compensation, no matter how absolute their dependency.

How far the use of the phrase “except invalids,” in parenthesis after “children or brothers or sisters,” in the final clause of section 7 (a), qualifies the former declaration, contained in the same section, that “in computing compensation * * * to brothers and sisters, only those under sixteen years of age, shall be included,” it is not necessary for us to here determine, as the cause was by the board, and will here be, disposed of on other grounds, properly presented and urged in the brief and argument of counsel.

The evidence is undisputed that at the time of the injury E'dward Morgan was contributing approximately $30 per month to the support of claimant. The only question before us, therefore, assuming that an invalid brother over the age of sixteen years is entitled to compensation, is: Was the finding of the board that claimant was not, at the time of the injury an invalid within the contemplation of the Act supported by any substantial evidence?

Counsel for claimant contend that, as the appeal is from the [1] judgment of the district court, the rule that “the supreme court will not reverse the findings of the district court except where the evidence clearly preponderates against them” controls, and that the findings and decision of the board are only indirectly involved. The reason for the adoption of the rule quoted is that in cases where such a rule is applicable the trial court has had the witnesses before it and had the superior advantage of considering their evidence in the light of their demeanor on the stand and the manner in which they testified. Where, however, the trial court renders its findings on the identical record presented to the appellate court, the reason for the rule does not attach; and it is one of our maxims that, “when the reason of a rule ceases so should the rule itself.” (Sec. 6178, Rev. Codes.) We are in as an advantageous position as was the district court on the appeal from the findings [2] of the board. The rule contended for should, however, have governed the action of the district court; its position is analogous to that of a district judge, other than the one who presided at the trial, to whom a motion for a new trial has been submitted. In such a case this court has said: “When a motion for a new trial for insufficiency of the evidence is submitted to a judge other than the one who presided at the trial, for the very reason that he cannot call to his aid a recollection of the demeanor of the witnesses, he ought not to go further than to determine upon the dead record the question whether there is a decided preponderance of evidence against the verdict or decision. If such is the case, a new trial ought to be granted; otherwise not.” (Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76, citing Orr v. Haskell, 2 Mont. 225, and Landsman v. Thompson, 9 Mont. 182, 22 Pac. 1148.)

This rule was applied in Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 Pac. 124, which was also a case arising under our Compensation Act. In the opinion, after declaring that the action of the district court is that of review rather than a new trial, we said: “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.” This is true whether the district court adopts or rejects the findings of the board on a review of the “dead record.”

The rule almost universally adopted by the courts in jurisdictions having Compensation Acts is that the findings and decision of the commission or board cannot be reversed where there is any evidence to support them:

California: Frankfort Ins. Co. v. Pillsbury, 173 Cal. 56, 159 Pac. 150; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 Pac. 721; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; Kirkpatrick v. Industrial Acc. Com., 31 Cal. App. 668, 161 Pac. 274; Smith v. Industrial Acc. Com., 26 Cal. App. 560, 147 Pac. 600.

Michigan: Bayne v. Riverside S. & C. Co., 181 Mich. 378, 148 N. W. 412, 5 N. C. C. A. 837; Shafer v. Parke-Davis Co., 192 Mich. 577, 159 N. W. 304; Papinaw v. Grand Trunk Ry. Co., 189 Mich. 441, 155 N. W. 545; Spooner v. Detroit Saturday Night Co., 187 Mich. 125, L. R. A. 1916A, 17, 153 N. W. 657, 9 N. C. C. A. 647; Ramlow v. Moon Lake Ice Co., 192 Mich. 505, L. R. A. 1916F, 955, 158 N. W. 1027; Hills v. Blair, 182 Mich. 20, 148 N. W. 243.

New York: Rhyner v. Hueber Building Co., 171 App. Div. 56, 156 N. Y. Supp. 903; Hendricks v. Seeman Bros., 170 App. Div. 133, 155 N. Y. Supp. 638; Goldstein v. Centre Iron Works, 167 App. Div. 526, 153 N. Y. Supp. 224; Prokopiak v. Buffalo Gas Co., 176 App. Div. 128, 162 N. Y. Supp. 288.

Wisconsin: Milwaukee Coke & Gas Co. v. Industrial Acc. Com., 160 Wis. 247, 151 N. W. 245; First Nat. Bank v. Industrial Com., 161 Wis. 526, 154 N. W. 847; Milwaukee v. Industrial Com., 160 Wis. 238, 151 N. W. 247; Eagle Chemical Co. v. Nowak, 161 Wis. 446, 154 N. W. 636; Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N. W. 631.

Massachusetts: In re Fierro’s Case, 223 Mass. 378, 111 N. E. 957; In re Doherty’s Case, 222 Mass. 98, 109 N. E. 887; In re Savage, 222 Mass. 205, 110 N. E. 283; In re Sanderson, 224 Mass. 558, 113 N. E. 355; In re Von Ette, 223 Mass. 56, L. R. A. 1916D, 641, 111 N. E. 696.

Illinois: Armour & Co. v. Industrial Board, 273 Ill. 590, 113 N. E. 138; Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976; Chicago A. R. Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629; Sub. Ice Co. v. Industrial Board, 274 Ill. 630, 113 N. E. 979; Munn v. Industrial Board, 274 Ill. 70, 113 N. E. 110.

New Jersey: Blackford v. Green, 87 N. J. L. 359, 94 Atl. 401; Jackson v. Erie Ry. Co., 86 N. J. L. 550, 91 Atl. 1035; Scott v. Payne Bros., 85 N. J. L. 446, 89 Atl. 927; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458.

Minnesota: State ex rel. Crookston L. Co. v. District Court, 132 Minn. 251, 156 N. W. 278; State ex rel. Virginia & Rainy Lake Co. v. District Court, 128 Minn. 43, 150 N. W. 211; State ex rel. Nelson-Spelliscy Imp Co. v. District Court, 128 Minn. 221, 150 N. W. 623.

Washington: Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5.

Rhode Island: Weber v. American Silk Spinning Co., 38 R. I. 309, Ann. Cas. 1917E, 153, 95 Atl. 603, 11 N. C. C. A. 437.

Connecticut: Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.

In the last case cited the court said: “Compensation Acts have had a common origin and a common history, and the great majority of the twenty-four thus far enacted in our states bear close resemblance to each other in essential features. In only three of the twenty-four, we believe, is a retrial of * '* ® fact permitted on appeal from an award; and, unless the Acts have expressly given a retrial, the courts have construed them to intend the contrary.”

The authorities above cited merely apply to the findings and decision of the Accident Board, the general rule governing the review of the evidence on appeals generally. That this is true is indicated in Re Savage, supra, where it is said: “The findings of the Industrial Accident Board are equivalent to the verdict of a jury or the findings of a judge.”

The rules heretofore announced in this jurisdiction that (1) the supreme court will not reverse the findings of the district court in equity cases, except where the evidence clearly preponderates against them, and (2) where there is a substantial conflict in the evidence, in an action at law, the supreme court will not reverse the judgment on the ground of insufficiency of the evidence, are but modifications of the general rule above announced.

We can therefore go no further than to determine from the cold record whether the evidence clearly preponderates against the findings of the board, and must assume that the district court found that it does.

The evidence is conflicting. While the claimant testified that [3] he was entirely incapacitated from performing any labor at the time of the accident and for more than three years prior thereto, it appears without contradiction that at the very time he was employed in a clerical position, receiving approximately $4 per day for his services, and that he had been so employed for a period of six weeks prior to the accident. It is true that he established the fact that E'dward Morgan was at the same time contributing to his support. But voluntary contributions are not necessarily evidence of dependency. (Miller v. Riverside Storage Co., 189 Mich. 360, 155 N. W. 462.)

As proof of his dependency, claimant also offered proof to [4] the effect that he had been injured in a mine in the year 1900, and that as a result of that injury he was at the time of the injury to his brother unable to perform labor in the mines and suffered from constant headaches and nervousness. Yet it is admitted that he w'orked in the mines at Butte for seven years thereafter and on- the police force of that city for two years, and did not leave the police force because of incapacity, but in order to attend a medical college. As to his headaches and mental condition, Dr. Horst, called for the claimant, testified that he had examined the man and that he passed a pretty fair examination; that he found nothing much to warrant his condition; and that headache and nervousness would not, under ordinary conditions, incapacitate a man from work, although he added that, “if continued and persistent, he would land in the insane asylum or die, because one cannot suffer from these things all the time and not feel wretched.” The board was not, however, concerned with problematical future conditions, but only with the condition of claimant at the time of the injury and for a reasonable period prior thereto.

It also developed that claimant was in the habit of taking as high as seventy-five Asetanilid tablets a day, for the relief of pain, which amount, the doctor testified, if taken by a man not accustomed to their use, would produce death. And it must be remembered that the board had the claimant himself before it on the stand; he was, in effect,' a living exhibit of his then condition, which was said to be worse than a‘t the time of the injury to his brother. The board in its findings commented on his condition, in the light of the evidence adduced, as follows: “ On the witness-stand he proved a competent, careful witness, with a strong, quick, active, virile mind; not a moment’s hesitancy in answering questions; quick on dates and positive in his statements, indicating that he could fairly and reasonably be expected to fill with satisfaction any clerical position. He was on the witness-stand for over an hour and a half, 'subjected to a thorough examination and a grueling cross-examination; yet there was not the slightest indication of exhaustion or-undue nervousness, or any symptoms to indicate an invalid. He appeared strong physically, weighing close to 200 pounds (judging from appearance) and displayed exceptional mental ability.”

It is contended that claimant’s condition is due to an injury received in 1900, while working in another state, and counsel, taking that injury as the basis, contend that incapacity means only inability to perform the labor the injured party was performing at the time of the injury, and cite many cases under compensation laws in support of their contention. But these cases refer, and can only refer, to disabled workmen seeking compensation for the injury resulting in disability, and can have no bearing on the incapacity of a dependent.

If a brother over the age of sixteen years is a “minor dependent” under the provisions of our Act, it can only be when [5] such brother is an “invalid”—that is, “one who is physically or mentally incapacitated.” It is immaterial what is the cause of his infirmity; on the other hand, if he is able to support himself by his own effort iii any branch of physical or mental endeavor, he cannot be said to be “incapacitated.”

On the “dead record,” we cannot say .that the evidence clearly preponderates against the findings of the board, and are therefore forced to the conclusion that the district court erred in so finding.

The judgment and order appealed from are reversed, and the cause is remanded, with direction to the district court to enter judgment in accordance with the findings of the board.

Reversed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.