Radonich v. Anaconda Copper Mining Co. , 91 Mont. 437 ( 1932 )

We, the majority, concur in the result announced in the foregoing opinion, but we are not content to remain silent as to our reasons against a further hearing.

What was the issue for trial in the district court?[2] Indubitably the same issue which was before the Industrial Accident Board, viz., the condition of the claimant's leg at the time the board rendered its decision. Waiving any discussion as to the propriety of the court's action in receiving additional testimony, that relating to the leg showed it to be in better condition than it was when the board declared claimant no longer entitled to compensation. Claimant's own physician, Dr. James, whose testimony bears the stamp of honesty, testified that when he made his first examination (April 30, 1930), the condition of the leg was not such as to deter claimant from working. The doctor knew of the two-bit piece sized abrasion of the shin-bone by hearsay only, because the wound was healed before he ever saw the leg. At trial time in the district court the varicose condition of the leg was better, much better, than when the doctor first saw it. In fact, it was so good that it put no hindrance on claimant's return to work. The doctor then had many patients at work whose legs were affected to a greater degree of varicosity than was claimant's. But claimant refused, declined, to work.

Other physicians supported the testimony of Dr. James; indeed, the other physicians who testified weakened claimant's position. When the case came to the district court there came with it the presumption that the board had decided correctly. (Morgan v.Butte Central M. M. Co., 58 Mont. 633, 194 P. 496.) "All such orders, rules, and regulations, findings, decisions, and awards shall be conclusively presumed to be reasonable and lawful, until and unless they are modified or set aside by the board or upon review." (Sec. 2948, Rev. Codes 1921.)

This significant fact stands out: The evidence received by the court strengthened greatly the decision of the board. As is said in the foregoing opinion, the evidence before the board was ample to sustain its findings, and it is the unanimous judgment of the court that there is no substantial evidence supporting the findings of the district court, and the judgment must be reversed.

However, it is suggested that the district court should remand the case "for a further hearing, if plaintiff so desires, within the rules stated" in the authorities named. An examination of the authorities discloses that, by reason of difference in the statutes upon which the cases referred to are based, none is in point, nor persuasive, here.

But upon the facts here, why should claimant have a further hearing? He does not ask it; he asks that the judgment of the district court be affirmed. The suggestion that in a case of this nature this court should order a further hearing is one that we think should not pass unnoticed, as we do not desire to be misunderstood by reason of silence. What is meant by a further hearing? Is it that the case shall be remanded to the district court or to the board to supply some deficiency in the evidence? Is it a new trial? If it is the latter, clearly our statute does not provide for it. A new trial at best is a somewhat cumbersome, technical and dilatory procedure. The intention of the legislature was to get away so far as practicable from the technical practice and procedure which under our present system needs must govern the operation of a court. The Industrial Accident Board is a layman's court. It is in a measure arusticum forum, as Chancellor Kent dubbed a board of arbitration. The intention of the Act is to make practice and procedure before the board as simple as possible. The Act calls for the speedy adjustment of industrial accident cases, regardless of technical forms and requirements; the board makes its own rules, provides its own forms. (Sec. 2958.) After the board makes its order or decision, any party or parties aggrieved thereby may apply for a rehearing upon any of the six grounds stated in the statute. (Sec. 2955.) The contents of the application are provided in section 2957, and are very simple. The board is given full power and authority to make and prescribe rules to govern the procedure upon rehearing, "and any matter before it and any order made after such rehearing abrogating or changing the original order shall have the same force and effect as an original order, and shall not affect any right, or enforcement of any right, arising from or by virtue of the original order." (Sec. 2957.)

An appeal is allowed to the district court "for the purpose of having the lawfulness of the original order, decision, or award, or the order, decision, or award on rehearing inquired into and determined." (Sec. 2959.) Upon the appeal the court shall determine either upon the record certified by the board, or upon that and such additional evidence as the court shall permit to be introduced for good cause shown, 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. (Sec. 2960.)

"The board and each party to the action or proceeding before the board shall have the right to appear in the proceeding, and it shall be the duty of the board to so appear. 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." (Sec. 2961.)

If the district court shall be of the opinion that further testimony should be admitted within the province of its inquiry, it may, for good cause shown, admit the same. The court must render its own judgment. (Dosen v. East Butte Copper Min.Co., 78 Mont. 579, 254 P. 880; Kerns v. Anaconda CopperMin. Co., 87 Mont. 546, 289 P. 563; Mulholland v. Butte Superior Min. Co., 87 Mont. 561, 289 P. 574.) The district court upon appeal is given a broad discretion within the powers granted (Dosen v. East Butte Copper Min. Co., supra); the provisions of the Act are to be given a liberal construction (sec. 2964). Under the guise of "liberal construction" we are not permitted to legislate. Nor have we any inclination to do so. We have not any disposition to add to nor detract from the procedural directions of the Act. One step of that character inevitably leads to another. Whether,[3] being confronted with an extraordinary condition, factual or legal, this court may find it necessary and lawful in order to prevent a miscarriage of justice to direct the board to grant a further hearing of a cause, or upon some phase thereof, we need not now inquire, expressly reserving a decision upon the question. There is no miscarriage of justice in this case.

The claimant was represented at all times by experienced counsel. It is not to be supposed that he did not ask all questions he deemed it advisable to ask. Regardless of that, this court will not sua sponte pursue the unheard of course of suggesting questions which it thinks might be advantageous to one side or the other, and order a further hearing in order that such questions may be asked.

ASSOCIATE JUSTICES GALEN and MATTHEWS concur.