Ricks v. Teslow Consolidated

No. 12419
I N THE SUPKEME COURT O THE STATE OFPDNTANA
F
JIMMY A. RICKS,
P l a i n t i f f and Respondent,
TESLOW CONSOLIDATED and ARGONAUT
INSURANCE COMPANY,
Defendants and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable W. W . Less l e y , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellants :
H a r r i s , J a c k s o n and U t i c k , H e l e n a , Montana.
Vern H a r r i s a r g u e d , Helena, Montana.
For Respondent :
B o l i n g e r and Wellcome, Bozeman, Montana.
Page Wellcome a r g u e d , Bozeman, Montana.
-
Submitted: A p r i l 25, 1973
Decided : J ~ 26ln
L g
Filed : JUL 2 6 1975
Mr. J u s t i c e C a s t l e s d e l i v e r e d t h e Opinion of t h e Court.
This i s an appeal from a n amended judgment of J u l y 30, 1971,
and a supplementary judgment e n t e r e d on October 17, 1972, e n t e r e d
by t h e d i s t r i c t c o u r t i n G a l l a t i n County on f i n d i n g s of f a c t and
conclusions of law i n f a v o r of a c l a i m a n t f o r workman's compensa-
tion.
Through a h e a r i n g b e f o r e t h e I n d u s t r i a l Accident Board on
June 3 , 1970, claimant Jimmy A. Ricks sought workmen's compensa-
t i o n , based upon h i s c l a i m f o r compensation which had been f i l e d
w i t h t h e Board over t h r e e y e a r s and seven months a f t e r t h e d a t e
of h i s a c c i d e n t . The I n d u s t r i a l Accident Board ( h e r e i n a f t e r
c a l l e d t h e Board) denied compensation.
Claimant appealed t o t h e d i s t r i c t c o u r t and was awarded
compensation f o r 500 weeks, a t t h e r a t e of $50 per week, payable
i n a lump sum. Subsequently, t h e d i s t r i c t c o u r t e n t e r e d an
amended o r d e r nunc pro tunc which awarded compensation f o r a
p e r i o d n o t t o exceed 500 weeks and d e l e t e d t h e p r o v i s i o n f o r payment
i n a lump sum. Defendants appealed t h e amended judgment t o t h i s
Court.
The appeal r e s u l t e d i n a p e r curiam o r d e r , d a t e d February 7,
1972, wherein t h i s Court s t a t e d :
"IT I S ORDERED t h a t t h e cause be remanded t o t h e
S t a t e I n d u s t r i a l Accident Board and t h a t s a i d Board
conduct a h e a r i n g i n t o t h e element of e s t o p p e l based
upon t h e a c t i o n o r i n a c t i o n of t h e a t t o r n e y s f o r
Teslow Consolidated w h i l e r e p r e s e n t i n g c l a i m a n t ' s
i n t e r e s t s . I'
A second h e a r i n g was h e l d b e f o r e t h e Board on May 19, 1972,
pursuant t o t h i s c o u r t ' s o r d e r . On June 7 , 1972, t h e h e a r i n g s
o f f i c e r e n t e r e d a memorandum opinion and f i n d i n g s o f f a c t and
c o n c l u s i o n s of law denying compensation. The d e c i s i o n of t h e
h e a r i n g s o f f i c e r was adopted by t h e Board by o r d e r d a t e d J u l y
12, 1972.
O c l a i m a n t ' s second appeal t o t h e d i s t r i c t c o u r t , t h a t
n
c o u r t e n t e r e d a d d i t i o n a l f i n d i n g s o f f a c t and conclusions of law
and a supplementary judgment which r e v e r s e d t h e d e c i s i o n o f t h e
Board and awarded compensation f o r a p e r i o d n o t t o exceed 500
weeks. Defendants appeal from t h e d i s t r i c t c o u r t ' s amended
judgment of J u l y 3 0 , 1971, and from t h e c o u r t ' s supplementary
judgment of October 17, 1972.
The s o l e i s s u e h e r e i s : Did t h e d i s t r i c t c o u r t e r r i n
r e v e r s i n g t h e d e c i s i o n of t h e Board and i n e n t e r i n g judgment
f o r payment of 500 weeks of workmen's compensation?
O o r about A p r i l 27, 1966, w h i l e i n t h e employ of Teslow
n
Consolidated, claimant Jimmy A. Ricks s u s t a i n e d an a c c i d e n t a l
i n j u r y i n t h e n a t u r e of a puncture would below h i s l e f t p a t e l l a .
He a l s o complained of a f o r e i g n body i n h i s r i g h t eye. The
knee was cleansed and d r e s s e d by D r . J.M.Brooke of Ronan, Montana,
and c l a i m a n t ' s eye was examined, b u t no f o r e i g n body was found.
D r . Brooke i n d i c a t e d c l a i m a n t would p o s s i b l y b e o f f work one day,
b u t would n o t i n c u r any permanent d i s a b i l i t y .
O A p r i l 29, 1966, Ricks was seen by D r . A. L. Vadheim of
n
Bozeman, who i n d i c a t e d Ricks would be p a r t i a l l y d i s a b l e d f o r
two weeks. Ricks was seen p e r i o d i c a l l y following A p r i l 29, 1966,
by D r . Vadheim and u l t i m a t e l y by D r . F r a n c i s Kelly, an orthopedic
surgeon, i n c o n s u l t a t i o n on February 10, 1967, following which
p h y s i c a l t h e r a p y was recommended. D r . Kelly diagnosed Ricks'
d i f f i c u l t y a s an i n f l a m a t i o n o f t h e l e f t kneecap, termed chondro-
malacia p a t e l l a , i n v o l v i n g t h e back s u r f a c e l i n i n g of t h e kneecap
and he i n j e c t e d t h e knee s e v e r a l times w i t h c o r t i s o n e .
Sometime a f t e r August 1, 1966, Ricks c o n t a c t e d M r . H.A.
Bolinger, a n a t t o r n e y and s t o c k h o l d e r f o r two of t h e f o u r Teslow
Companies t h a t owned Teslow Consolidated, who then was p r e p a r i n g
a s u i t f o r damages a g a i n s t t h e o t h e r p a r t y o r p a r t i e s involved i n
the accident. A t t h e time of e i t h e r t h e f i r s t o r second v i s i t w i t h
Mr. Bolinger, Ricks engaged Bolinger t o look a f t e r h i s l e g a l i n -
t e r e s t s i n connection w i t h t h e a c c i d e n t . Ricks was made a p a r t y
lai in tiff i n t h e s u i t f o r damages along w i t h h i s employer, Teslow
Consolidated. This s u i t was e v e n t u a l l y s e t t l e d t o t h e advantage
of p l a i n t i f f s , w i t h Ricks r e c e i v i n g a n e t amount ( a f t e r a t t o r n e y s '
f e e s and c o s t s of some $4,100 t o $4,700) of $8,800 t o $8,900.
During t h e s t a t u t o r y time f o r f i l i n g a c l a i m f o r compensation
t h e r e was only one a t t o r n e y (Mr. Bolinger) f o r Teslow Consolidated
involved w i t h claimant Ricks. Two o t h e r a t t o r n e y s e n t e r e d t h e
c a s e a t varying times l a t e r , b u t n e i t h e r was i n t h e c a s e w i t h i n
one y e a r a f t e r t h e a c c i d e n t . M r . Andriolo became involved when
he became a s s o c i a t e d w i t h Bolinger i n J u l y o r August of 1967.
M r . Wellcome, a l s o upon becoming a s s o c i a t e d w i t h M r . Bolinger,
was n o t involved u n t i l 1969.
O December 1, 1969, over t h r e e y e a r s and seven months a f t e r
n
t h e d a t e of t h e a c c i d e n t , Ricks f i l e d a c l a i m f o r workmen's com-
pensation.
Defendant, Argonaut Insurance Co., paid medical b e n e f i t s
through May 20, 1970, t o t a l i n g $231. This sum r e p r e s e n t s a l l
medical b i l l s submitted on t h e c l a i m w i t h t h e exception of one
b i l l from D r . Kelly i n t h e amount of $25 f o r a r e p o r t t o t h e
Department of Labor and I n d u s t r i e s i n t h e s t a t e of Washington.
On A p r i l 5 , 1971, t h e Board e n t e r e d i t s f i r s t f i n d i n g s o f
f a c t and conclusions o f law. I n i t s conclusions numbered I1 and
111, t h e Board h e l d s p e c i f i c a l l y :
"11. That t h e c l a i m a n t f i l e d a c l a i m f o r compen-
s a t i o n a f t e r t h e s t a t u t o r y p e r i o d as s e t f o r t h i n
S e c t i o n 92-601, R.C.M. 1947, had e x p i r e d .
"111. That t h e evidence i s i n s u f f i c i e n t t o e s t a b -
l i s h t h a t t h e defendant c a r r i e r because of t h e i r
a c t i o n s i n t h i s i n s t a n t c a s e a r e e q u i t a b l y estopped
from r a i s i n g t h e defense of t h e s t a t u t e of l i m i t a -
t ions. II
Upon t h e f i r s t a p p e a l t h e m a t t e r was submitted t o t h e d i s t r i c t
c o u r t on t h e t r a n s c r i p t from t h e I n d u s t r i a l Accident Board and no
new evidence was o f f e r e d .
On June 23, 1971, t h e d i s t r i c t c o u r t e n t e r e d i t s f i n d i n g s of
and
f a c t , / c o n c l u s i o n s of law, r e v e r s i n g t h e Board. A s a b a s i s of
r e v e r s a l , t h e c o u r t h e l d t h a t defendant Argonaut Insurance Co.
was e q u i t a b l y estopped from r a i s i n g t h e defense of t h e s t a t u t e of
l i m i t a t i o n s , a s s e t f o r t h i n s e c t i o n 92-601, R.C.M. 1947. The
c o u r t f u r t h e r h e l d t h a t defendant Argonaut Insurance Co. had a
duty t o o b t a i n a c l a i m f o r compensation from t h e p l a i n t i f f and
t o a d v i s e him i t must be f i l e d w i t h i n one y e a r from t h e d a t e
of t h e a c c i d e n t .
The f a c t s upon which t h e c o u r t based i t s conclusions r e l a t e
t o t h e a c t i o n s of ~ r g o n a u t ' sa g e n t , George Wood. The c o u r t found
t h a t Wood had a c e r t a i n e x p e r t i s e i n t h e workmen's compensation
f i e l d and t h a t h i s o f f i c e normally followed a procedure of sending
a c l a i m f o r compensation form t o a c l a i m a n t and a d v i s i n g c l a i m a n t
he must f i l e h i s c l a i m w i t h i n twelve months of t h e d a t e of t h e
a c c i d e n t i n c a s e s where t h e p h y s i c i a n ' s f i r s t r e p o r t o r t h e
employer's r e p o r t i n d i c a t e s a l o s s of time i n excess o f seven days.
The c o u r t found t h i s procedure was n o t followed i n t h e i n s t a n t c a s e .
I t f u r t h e r found t h a t Wood f a i l e d t o send a copy of D r . Vadheim's
f i r s t r e p o r t t o t h e Board, although Wood normally would have done
so. The c o u r t d i d n o t e x p l a i n how t h e f a i l u r e t o forward D r .
~ a d h e i m ' sr e p o r t i n any way p r e j u d i c e d o r a f f e c t e d t h e claimant.
F i n a l l y , t h e c o u r t based i t s conclusion of e q u i t a b l e e s t o p p e l on
t h e f a c t t h a t defendant Argonaut Insurance Co. had " n o t i c e of t h e
c o n t i n u i n g d i f f i c u l t y which t h e p l a i n t i f f was e x p e r i e n c i n g by
and through medical r e p o r t s ** *.If
Defendants f i l e d formal e x c e p t i o n s t o t h e c o u r t ' s f i n d i n g s
and c o n c l u s i o n s , which were subsequently denied.
The testimony i s undisputed t h a t c l a i m a n t Ricks had never
had any c o n t a c t whatsoever w i t h anyone connected w i t h Argonaut
Tnsurance Co. up t o t h e d a t e o f t h e h e a r i n g b e f o r e t h e Board.
There was n o t h i n g between claimant and t h e Argonaut Insurance Co.
o r t h e Board toward making a claim, p r i o r t o t h e a c t u a l f i l i n g
of t h e claim. Counsel f o r claimant made some obscure r e f e r e n c e s
i n t h e f i r s t h e a r i n g t o something between claimant and a t t o r n e y s
f o r t h e employer, Teslow Consolidated, who were a l s o a t t o r n e y s f o r
c l a i m a n t , b u t any c o n t e n t i o n of a n y t h i n g i n t h e n a t u r e of an
e s t o p p e l i n t h i s r e s p e c t was abaondoned u n t i l a f t e r t h i s C o u r t ' s
order of February 7, 1972. Counsel's letter of January 21, 1971,
to the chairman of the Board stated: "* * Jc we will withdraw the
contention which we made before the Board pertaining to an element
of estoppel being based upon any action or inaction of the attor-
neys for Teslow, Inc. * * *" After this court's order of February
7, 1972, claimant reasserted an issue of estoppel based upon the
actions or inactions of claimant's and employert counsel.
s
At the second hearing before the Board on my' 19, 1972,
Mr. Bolinger testified:
"Q. Then at that time, when these notes were made,
did you agree to represent Mr. Ricks with any legal
problems he might have as a result of the accident?
"A. 1'm sure I did. He was a party-plaintiff in
the accident case, and 1'm sure I was representing
him in whatever there was, yes.
"Q. Do you have any specific recollection at this
time as to any further discussion of the industrial
accident claim?
"A. I don't have any distinct recollection of it.
He was off 11 days, it seems to me, and I thought
he wasn't off long enough to present a claim, and
he had this large family he was having to support,
is all I remember about it. I I
On cross-examination, Mr. Bolinger testified:
"Q. In answer to Mr. Wellcome's question as to
whether or not you discussed workmen's compensation
with Mr. Ricks, that phase of this accident,'you
said, I believe, you must have discussed it to some
extent'. Do I understand correctly you meant to the
extent of these notes in Exhibit No. l?
'A. Yes, there's a couple things in that that would
have pertained to it, like the time he was off, and
the reference at the bottom. I would have had to have
talked about industrial accident or workmen's compen-
sation to have written those notes.
"Q. Of course, those matters could also have pertained
to any claim against the driver and owner of the tractor,
could they not, loss of time and claim for medical bene-
fits?
"A. Well, yes, but the reference there that 1 Industrial
paid bills', means an industrial accident had to be
mentioned at the time.
"Q. But you might have been interested in that from
the standpoint of a claim against the third party as
owner of the tractor and driver of the tractor?
"A. That would be true.
"Q. And do I understand c o r r e c t l y t h a t you d o n ' t
have any independent r e c o l l e c t i o n of d i s c u s s i n g
t h e i n d u s t r i a l a c c i d e n t phase w i t h M r . Ricks a t
t h e time t h e s e n o t e s were made?
"A. Other than I remember him t e l l i n g m he e
had so much family h e ' d have t o go back t o work
sooner than he thought he should because he
c o u l d n ' t g e t by on what compensation he could
g e t . I do remember t h a t .
II
Q. You d i d n ' t make any n o t e on t h a t on
E x h i b i t No. l ?
'A. No.
"Q. And t h a t ' s t h e only t h i n g you r e c a l l i n -
dependently of t h i s memorandum t h e n ?
"A. I t h i n k t h a t ' s c o r r e c t , t h a t ' s t h e only
independent r e c o l l e c t i o n I have of i t . 1 ' m
i n c l i n e d t o t h i n k t h a t when he was only o f f
1 days, I t o l d him i t wasn't worth p u t t i n g i n
1
a claim.
"Q. y o u ' r e n o t s u r e whether you t o l d him t h a t
or not7
"A. Well, I would t h i n k I d i d , b u t I c a n ' t
remember s a y i n g t h e words. I remember d e f i n i t e l y
h i s talking about h i s l a r g e f a m i l y , I remember t h a t . 11
c l a i m a n t ' s r e c o l l e c t i o n of any d i s c u s s i o n of a compensation
c l a i m w i t h M r . Bolinger was a l s o extremely hazy a s t o p r e c i s e l y
what was s a i d and when. I n f a c t , claimant had t e s t i f i e d a t t h e
f i r s t Board h e a r i n g t h a t he had d i s c u s s e d t h e s u b j e c t of t h e claim
f i l i n g requirement w i t h i n a year of t h e a c c i d e n t d a t e w i t h Mr.
Andriolo and M. Andriolo had advised him a s t o t h e f i l i n g r e -
r
A t t h e second h e a r i n g , claimant changed h i s s t o r y and s t a t e d
t h a t he had n o t d i s c u s s e d t h e f i l i n g requirements u n t i l a f t e r t h e
f i l i n g p e r i o d had e x p i r e d . Also, a t t h e second h e a r i n g , claimant
changed h i s s t o r y a s t o how he came t o s e e M r . Bolinger i n t h e
f i r s t place. Under cross-examination a t t h e f i r s t h e a r i n g , c l a i m a n t
f i n a l l y admitted t h a t i t was h i s i d e a t o c o n t a c t M r . Bolinger and
use t h e same lawyer a s Teslow Consolidated. A t t h e second h e a r i n g ,
claimant t e s t i f i e d t h a t he f i r s t saw Bolinger a t t h e r e q u e s t of
someone w i t h Teslow Consolidated.
There i s no d i s p u t e , however, t o t h e f a c t t h a t claimant
r e t a i n e d M r . Bolinger t o r e p r e s e n t him i n connection w i t h h i s
injuries within the one year claim filing period.
On June 7, 1972, the Board entered its findings of fact and
conclusions of law:
"FINDINGS OF FACT
"I. That there is no dispute that the Claimant
suffered an accidental injury arising out of and
in the course of his employment with Teslow, Inc.
on April 27, 1966, in Lake County, Montana.
"11. That the Claimant received medical benefits
pursuant to the provisions of Section 92-706,
R.C.M. 1947.
"111. That no Claim for Compensation was filed
within the statutory time for filing as required
by Section 92-601, R.C.M. 1947.
"IV. That the Claimant was summoned to the office
of Mr. H. A. Bolinger, an attorney at Law, for the
purpose of providing eye witness information to be
used in preparation of a suit for damages in a Court
of Law on behalf of the Claimant's employer, Teslow,
Inc .
"V. That Bolinger was a stock holder in two of the
four corporations that owned Teslow, Inc., and
further that Bolinger was and had been an attorney
on a retainer and additional fee basis for the Teslow
interests for a number of years prior to and at the
time of his association with the Claimant.
"VI. That the Claimant, subsequent to his meeting with
Bolinger, became a party plaintiff along with Teslow,
Inc. in a suit for damages filed in the 4th Judicial
District, Polson, Montana, on November 9, 1967, against
another party or other parties, and that Bolinger acted
as attorney in the common interests of both the Claimant
and Teslow, Inc. and further that the Claimant retained
Bolinger to represent his legal interests in connection
with the accident.
"VII. That Bolinger pursued the interests of his clients,
the Claimant and Teslow, Inc., to the point of a settle-
ment without the necessity of a court decision.
"~111. That the Claimant lost eleven (11) days work
due to the injuries received in the accident Ghich
occurred on April 27, 1966.
"IX. That Pursuant to the provisions of Section 92-701,
R.C.M. 1947 as this section stood in April 1966 the
Claimant would have been entitled to four ( ) days of
4
compensation at the rate of $56.00 per week or a total
of $32.00 for temporary total disability had a timely
claim been filed.
"X. That the matter of Workman's Compensation was only
briefly discussed between the Claimant and Attorney
Bolinger and that Bolinger mistakenly believed that the
Claimant had not lost sufficient time from work to be
entitled to receive compensation.
"XI. That Atcorney Andriolo, an a s s o c i a t e of
Rolinger, d i d n o t e n t e r t h e c a s e o r d i s c u s s t h e
c a s e w i t h t h e Claimant u n t i l a f t e r t h e s t a t u t o r y
time f o r f i l i n g a c l a i m had run.
"XII, That t h e preponderance of evidence f a i l s t o
r e v e a l t h a t any of t h e elements of e q u i t a b l e e s t o p p e l ,
o r e s t o p p e l i n p a i s , a r e o r were p r e s e n t d u r i n g t h e
s t a t u t o r y twelve (12) month p e r i o d subsequent t o t h e
d a t e of t h e a c c i d e n t .
"I. That t h e Claimant w a s e n t i t l e d t o medical
b e n e f i t s under t h e p r o v i s i o n s of S e c t i o n 92-706,
R.C.M. 1947.
"11. That no Claim f o r Compensation was f i l e d by
t h e Claimant o r someone l e g a l l y a u t h o r i z e d t o a c t
i n h i s b e h a l f w i t h i n t h e time period d e s c r i b e d i n
S e c t i o n 92-601, R.C.M. 1947 and a s a r e s u l t t h e
Claimant i s n o t e n t i t l e d t o compensation under t h e
p r o v i s i o n s of t h e workman's Compensation Act, I'
Upon t h e second a p p e a l t o t h e d i s t r i c t c o u r t , t h e m a t t e r was
a g a i n submitted t o t h e c o u r t on t h e t r a n s c r i p t from t h e Board and
no new evidence was o f f e r e d .
O October 11, 1972, t h e d i s t r i c t c o u r t e n t e r e d i t s f i n d i n g s
n
of f a c t and c o n c l u s i o n s of law, r e v e r s i n g t h e Board. The c o u r t
adopted i t s previous f i n d i n g s and c o n c l u s i o n s and added t h e r e t o
an a d d i t i o n a l ground f o r e q u i t a b l e e s t o p p e l based on t h e " a c t i o n s ,
s t a t e m e n t s and assurances" of t h e a t t o r n e y s f o r t h e defendant,
Teslow Consolidated, who a l s o r e p r e s e n t e d t h e claimant.
The c o u r t , i n i t s amended o r d e r of J u l y 27, 1971, and r e -
a f f i r m e d i n i t s supplementary judgment of October 17, 1972, h e l d
t h a t c l a i m a n t w a s permanently d i s a b l e d a s a r e s u l t of h i s a c c i d e n t a l
i n j u r y and was thereby e n t i t l e d t o compensation f o r a p e r i o d n o t
t o exceed 500 weeks. This holding was based upon t h e c o u r t ' s f i r s t
f i n d i n g s of f a c t t h a t c l a i m a n t had s u s t a i n e d f u r t h e r i n j u r i e s i n
a d d i t i o n t o t h e puncture wound below h i s l e f t p a t e l l a . The
c l a i m a n t ' s o t h e r i n j u r i e s r e l i e d on by t h e c o u r t a r e s e t f o r t h i n
i t s f i n d i n g s of f a c t a s "sand i n h i s eye", "a t e n d e r l e f t second
toe1', "a c o n t u s i o n of t h e l e f t thigh", and "a mental c o n d i t i o n
* Jc * which manifested i t s e l f i n h i s being a f r a i d t o d r i v e a t r u c k
and f e e l i n g t h a t o t h e r v e h i c l e s coming towards him were i n t h e
process of c r o s s i n g over t h e c e n t e r l i n e s o a s t o s t r i k e t h e t r u c k
which he was d r i v i n g . 11
D r . ~ r o o k e ' sf i r s t r e p o r t , a s w e l l a s c l a i m a n t ' s own t e s t i -
mony, i n d i c a t e s t h a t t h e sand i n c l a i m a n t ' s eye was nothing of
significance. Claimant t e s t i f i e d t h a t he had a piece of g l a s s
i n h i s eye which h e removed himself. D r . ~ r o o k e ' sf i r s t r e p o r t
i n d i c a t e s t h a t he examined c l a i m a n t ' s eye and found no f o r e i g n
body. Claimant, on cross-examination, t e s t i f i e d :
"Q. You haven't had any t r o u b l e with your
eye s i n c e t h i s a c c i d e n t ?
"A. NO. II
The only r e f e r e n c e s i n t h e record t o a tender l e f t second
t o e and a contusion of t h e l e f t t h i g h occur i n t h e i n i t i a l r e p o r t s
and b i l l i n g s of D r . Vadheim. A examination of D r . ~ e l l y ' st e s t i -
n
mony before t h e Board r e v e a l s t h a t c l a i m a n t ' s only complaint t o
him was t h e problem with h i s l e f t knee. I n f a c t , claimant's
attorney stated:
"Q. (By M . H a r r i s ) Maybe I can shorten m
r y
cross-examination of t h e doctor, i f I ask M r .
Wellcome one question---are you claiming any-
t h i n g i n t h i s procedure f o r any i n j u r y o t h e r
than t o t h e knee?
"MR. IELLCOME: Only i n s o f a r a s t o what M r .
Ricks has a l r e a d y t e s t i f i e d t o about t h e
emotional problems which he has had i n d r i v i n g
a t r u c k and t h e f e a r t h a t o t h e r t r u c k s o r c a r s
a r e coming a c r o s s t h e c e n t e r l i n e which a f f e c t s
h i s a b i l i t y t o d r i v e a l s o , a s a r e s u l t of t h i s
accident. 1I
A s t o t h e "mental problem", t h e only evidence i n t h e record
i s t h e unsubstantiated, s e l f - s e r v i n g testimony of t h e claimant.
There i s no i n d i c a t i o n whatsoever t h a t claimant ever sought t r e a t -
ment f o r h i s "problem", o r , f o r t h a t m a t t e r , t h a t he ever mentioned
i t t o h i s doctors. There i s no medical testimony corroborating t h e
e x i s t e n c e of t h i s "problemf'. I n f a c t , t h e record i s completely
devoid of any medical testimony connecting t h i s "problem" t o t h e
a c c i d e n t of A p r i l 27, 1966.
I t i s apparent t h e Board f e l t t h e evidence i n s u f f i c i e n t t o
support a f i n d i n g of any o t h e r i n j u r i e s when i t found:
"That t h e medical evidence r e v e a l s t h e claimant i s
s u f f e r i n g from an inflamation of t h e knee, termed
Chrondromalacia p a t e l l a , which max possibly n e c e s s i -
t a t e surgery a t some f u t u r e time.
4s set out h e r e t o f o r e , t h e i s s u e i s whether t h e d i s t r i c t
c o u r t e r r e d i n r e v e r s i n g t h e d e c i s i o n of t h e Board and i n e n t e r i n g
judgment f o r payment of 500 weeks of workmen's compensation.
I t i s defendants' p o s i t i o n t h a t t h e d i s t r i c t c o u r t e r r e d i n
g r a n t i n g any compensation whatsoever because a c l a i m f o r compensa-
t i o n was n o t f i l e d u n t i l long a f t e r t h e s t a t u t e o f l i m i t a t i o n s
s e t f o r t h i n s e c t i o n 92-601, R.C.M., had e x p i r e d ; and t h e r e a r e
a b s o l u t e l y no f a c t s i n t h e c a s e which would j u s t i f y t h e i m p o s i t i o n
of an e q u i t a b l e e s t o p p e l a g a i n s t t h e i n s u r e r .
T h i s Court i n Becktold v. I n d u s t r i a l Accident Board, 137 Mont.
119, 125, 350 P.2d 383, s a i d :
"1f t h e evidence does n o t c l e a r l y preponderate a g a i n s t
t h e f i n d i n g s of t h e Board, t h e d i s t r i c t c o u r t must a f -
f i r m t h e ~ o a r d ' so r d e r . Moffett v. Bozeman Canning Co.,
95 Mont. 347, 26 P.2d 973."
Here, t h e q u e s t i o n i s , i n thelanguage of s e c t i o n 92-834,
R.C.M. 1947:
l'* ** whether o r n o t t h e f i n d i n g s of t h e board ought
t o b e s u s t a i n e d , and whether o r n o t such f i n d i n g s a r e
r e a s o n a b l e under a l l t h e circumstances of t h e c a s e . I I
I n M o f f e t t v. Bozeman Canning Co., 95 Mont. 347, 351, 26
P.2d 973, we s a i d :
"The c a s e came t o t h e d i s t r i c t c o u r t w i t h t h e DresumD-
t i o n t h a t t h e board had decided c o r r e c t l y . [ c i i i n g
c a s e s ] I'
See a l s o : Kerns v. Anaconda Copper Mining Co., 87 Mont. 546,
289 P. 563.
Was t h e Board a r b i t r a r y i n f i n d i n g t h a t t h e evidence was
i n s u f f i c i e n t t o e s t a b l i s h an equitable estoppel against the
defendant c a r r i e r ?
T h i s Court i n Meznarich v. Republic Coal Co., 101 Mont. 78,
9 3 , 53 P.2d 82, s a i d :
"The b o a r d ' s d e c i s i o n on t h i s q u e s t i o n can only be
r e v e r s e d i f a r b i t r a r y and founded on no s u b s t a n t i a l
evidence. I I
c l a i m a n t ' s a c c i d e n t of A p r i l 27, 1966 d i d n o t r e s u l t i n any
c l a i m f o r compensation b e i n g f i l e d u n t i l December 1, 1969, o r over
t h r e e y e a r s and seven months t h e r e a f t e r . The Montana workmen's
Compensation Act has two requirements : (1) s e c t i o n 92-807, R.C.M.
1947, which r e q u i r e s n o t i c e i n s i x t y days a f t e r t h e a c c i d e n t ; and
(2) s e c t i o n 92-601, R.C.M. 1947, which p r o v i d e s :
II
I n t h e c a s e of p e r s o n a l i n j u r y *** a l l claims
s h a l l be f o r e v e r b a r r e d u n l e s s p r e s e n t e d i n w r i t i n g
*** w i t h i n twelve months from t h e d a t e of t h e
happening of t h e a c c i d e n t , e i t h e r by t h e c l a i m a n t
o r someone l e g a l l y a u t h o r i z e d t o a c t f o r him. I I
This Court, deeming s e c t i o n 92-601, R.C.M. 1947, t o b e a
I1
s r a t u t e of l i m i t a t i o n s " has developed a n exception known a s
II estoppel1'. This d o c t r i n e of e s t o p p e l a p p l i e s where employer,
i n s u r e r , o r Board a s t h e c a s e may b e , has taken some p o s i t i v e
a c t i o n which e i t h e r p r e v e n t s t h e c l a i m a n t from making a c l a i m
o r l e a d s him reasonably t o b e l i e v e he need n o t f i l e such a claim.
This Court h a s seen f i t t o apply t h e d o c t r i n e of e s t o p p e l only
where t h e r e have been a f f i r m a t i v e a c t s b e f o r e t h e s t a t u t o r y period
has run which e i t h e r prevent t h e claimant from f i l i n g o r l e a d
him t o b e l i e v e h e need n o t do so.
The f i r s t c a s e i n Montana d e a l i n g w i t h e s t o p p e l was Lindblom
v. ~ m ~ l o ~ e Etc.' Assur. Corp., 88 Mont. 488, 295 P.2d 1007,
rs
where i t was h e l d t h a t an e s t o p p e l would b e a p p l i e d a s t o t h e
f a i l u r e t o f i l e a c l a i m where t h e a g e n t of an i n s u r a n c e company
l e d t h e worker t o b e l i e v e h i s c l a i m would be s e t t l e d , I n McCoy
v. Mike Horse Mining Co., 126 Mont. 435, 252 P.2d 1036, t h e i n j u r e d
workman was t o l d by t h e company d o c t o r t h a t he had n o t been i n j u r e d .
I n Levo v. Gen.-Shea-Morrison, 128 Mont. 570, 280 P.2d 1086, t h e
i n j u r e d worker was t o l d by a company lawyer and t h e company person-
n e l manager t h a t h i s c l a i m was n o t covered f o r workmen's compensa-
tion. I n Gugler v. I n d u s t r i a l Accident Board, 117 Mont. 38, 157 P.
2d 89, t h e c i t y c l e r k and mayor o f t h e c i t y of Hamilton informed
p l a i n t i f f t h a t i t was n o t n e c e s s a r y f o r him t o f i l e a c l a i m w i t h
the Board. In Yurkovich v. I n d u s t r i a l Accident Board, 132 Mont.
77, 314 P.2d 866, a Plan 1 1 c a s e , t h e c l a i m a n t wrote t o t h e Board,
1
i n q u i r i n g a s t o what he should do about h i s i n j u r y and t h e Board
l e d him t o b e l i e v e i t was n o t necessary t o f i l e a claim.
Tn t h e i n s t a n t c a s e , claimant was never misled by anyone
connected w i t h t h e Board o r t h e i n s u r e r . The undisputed evidence
shows t h e r e was never any communication between t h e c l a i m a n t and
anyone r e p r e s e n t i n g t h e i n s u r e r .
Claimant's c o n d i t i o n was f u l l y diagnosed by D r . Kelly w i t h i n
one y e a r of t h e a c c i d e n t , and claimant knew of h i s c o n d i t i o n .
A review of t h e medical evidence shows t h e d o c t o r ' s d i a g n o s i s
has n o t changed and c l a i m a n t ' s c o n d i t i o n h a s n o t worsened. In
o t h e r words, t h e c l a i m a n t knew, w i t h i n one y e a r , t h e f u l l e x t e n t
of h i s i n j u r y .
The only a f f i r m a t i v e a c t t h e i n s u r a n c e c a r r i e r took i n t h i s
m a t t e r a f t e r t h e a c c i d e n t w a s t o pay f o r medical expense i n c u r r e d
by t h e claimant.
Before t h e Board and t h e d i s t r i c t c o u r t , claimant r e l i e d
h e a v i l y on Gugler v. I n d u s t r i a l Accident Board, 117 Mont. 38,
157 P.2d 89. Although t h e f a c t s s u b s t a n t i a t i n g an e s t o p p e l o r
waiver were p r e s e n t i n Gugler, t h e Court based i t s d e c i s i o n upon
a t h e o r y t h a t t h e f i l i n g of a claim by a d o c t o r f o r h i s s e r v i c e s
was t h e e q u i v a l e n t of t h e f i l i n g of a c l a i m by t h e i n j u r e d work-
man, which dispensed w i t h t h e n e c e s s i t y o f any f u r t h e r c l a i m by
t h e workman.
I n i t s h a s t e t o a b r o g a t e t h e t h e o r y of Gugler, t h e l e g i s l a t u r e
amended t h e Workmen's Compensation Act t o provide t h a t medical
b e n e f i t s were "an a d d i t i o n a l b e n e f i t s e p a r a t e and a p a r t from
compensationf', b u t n e g l e c t e d t o have t h e l e g i s l a t i v e b i l l p r i n t e d .
By r e a s o n o f t h i s , t h e Court i n O'Bannon v. Gustafson, 130 Mont.
402, 303 P.2d 938, h e l d t h e amendment u n c o n s t i t u t i o n a l . I n O'Ban-
non
-9
i t was recognized t h a t t h e 1945 l e g i s l a t i v e amendment would
have chznged t h e Gugler r u l e had t h e amendment been c o n s t i t u t i o n a l .
The p e r t i n e n t s e c t i o n s have s i n c e been r e e n a c t e d and r e c o d i f i e d
numerous times, so t h e c o n s t i t u t i o n a l d e f e c t of ~ ' B a n n o nno longer
exists. I t i s now c l e a r t h a t medical b e n e f i t s a r e a n a d d i t i o n a l
b e n e f i t s e p a r a t e and a p a r t from compensation. N c l a i m f o r medical
o
b e n e f i t s need be made and t h e medical b e n e f i t s w i l l be p a i d d u r i n g
t h e f i r s t t h i r t y - s i x months a f t e r t h e a c c i d e n t .
I n Vetsch v. Helena T r a n s f e r & Storage Co., 154 Mont. 106,
460 P.2d 757, t h e i s s u e was r a i s e d a s t o whether payment of medical
claims would t o l l t h e s t a t u t e of l i m i t a t i o n s s e t f o r t h i n s e c t i o n
92-601, R.C.M. 1947. The Court held t h a t e s t o p p e l was i n a p p l i c a b l e ,
thereby a f f i r m i n g t h e r u l e t h a t payment of medical b i l l s does
n o t dispense with t h e n e c e s s i t y of a claim f o r compensation by
an i n j u r e d workman.
I n r e v e r s i n g t h e r u l i n g of t h e Board i n the i n s t a n t c a s e ,
t h e d i s t r i c t c o u r t p a r t i a l l y based i t s decision on t h e f a i l u r e
of Argonaut's a g e n t , George Wood, t o follow h i s own ordinary
i n t e r n a l o f f i c e procedure. The c o u r t decided i n e f f e c t , t h a t
Argonaut had a duty t o o b t a i n a claim f o r compensation from t h e
claimant. This i s d i r e c t l y c o n t r a r y t o t h e p l a i n , simple, un-
ambiguous language of s e c t i o n 92-601, R.C.M. 1947:
"* * * a l l cladms s h a l l be forever barred u n l e s s
resented i n w r i t i n n *
* w i t h i n twelve months
Thus, the duty i s upon t h e claimant t o f i l e h i s claim, n o t
upon t h e i n s u r e r t o s o l i c i t claims. The Workmen's Compensation
Act has n o t changed t h e p r i n c i p l e t h a t he who a s s e r t s a r i g h t has
t h e burden of proof o r t h e burden of proceeding. I n Nicholson
v. Roundup Coal Mining Co., 79 Mont. 358, 374, 257 P. 270, t h e
Court s a i d :
1'
The burden i s t h e r e f o r e upon t h e claimant t o prove
i n j u r y , a s above defined, r e s u l t i n g from (1) an i n -
d u s t r i a l a c c i d e n t , (2) a r i s i n g o u t of and (3) i n t h e
course of t h e employment, and, a s t h e s e terms a r e used
conjunctively and n o t d i s j u n c t i v e l y i n t h e s t a t u t e ,
u n l e s s a l l t h r e e of t h e s e necessary elements a r e proved
by a preponderance of t h e evidence, no l i a b i l i t y rests
upon t h e employer t o pay compensation. [Citing c a s e s ] . I I
Other cases holding t h a t t h e burden of e s t a b l i s h i n g a r i g h t
t o compensation i s t h e c l a i m a n t ' s a r e : Landeen v. Toole County
Refining Co., 85 Mont. 41, 277 P. 615; Woin v. Anaconda Copper
Min. Co., 99 Mont. 163, 43 P.2d 663.
In -
Yurkovich which was a plan I11 c a s e , the Court d i d hold
t h a t t h e Board had a duty t o f u l l y a d v i s e an i n j u r e d workman of
t h e claim f i l i n g requirements. But i n Yurkovich t h e claimant
wrote t o t h e Board asking f o r information a s t o what he should do.
I n t h e i n s t a n t c a s e t h e r e i s no such r e q u e s t from t h e claimant.
There was no communication whatsoever between claimant and t h e
i n s u r e r o r t h e Board. I n f a c t , claimant was represented by counsel
who s u r e l y should have known of t h e claim f i l i n g requirements.
The f a c t s of t h e i n s t a n t c a s e a r e c e r t a i n l y d i s t i n g u i s h a b l e from
Yurkovich. I n addition, Yurkovich was decided on t h e theory t h a t
t h e Board was a t r u s t e e of t h e s t a t e fund, t h a t i t a c t e d i n a dual
c a p a c i t y and, therefore,had a g r e a t e r duty toward claimants.
Defendant Argonaut i s n o t i n t h e same p o s i t i o n a s t h e Board.
A s pointed o u t , t h e d i s t r i c t c o u r t p a r t i a l l y based i t s r u l i n g
on what i t f e l t was t h e f a i l u r e of George Wood t o follow h i s own
i n t e r n a l o f f i c e procedure. I n i t s f i n d i n g s of f a c t of A p r i l 5 , 1971,
t h e d i s t r i c t c o u r t found t h a t Wood d i d n o t f i l e u n t i l 1970 a
medical r e p o r t with t h e Board which he had received i n 1966 from
D r . Vadheim. This i s immaterial t o any i s s u e of e s t o p p e l . There
i s no proof claimant had any knowledge t h a t t h e r e p o r t was n o t
sent. Thus i t was impossible f o r t h e claimant t o have been pre-
judiced o r misled. Even i f t h e r e p o r t had been s e n t , i t i s i m -
p o s s i b l e t o see how t h i s would have a f f e c t e d the s i t u a t i o n i n any
way.
I n i t s f i n d i n g s of f a c t of A p r i l 5 , 1971, t h e d i s t r i c t c o u r t
found t h a t under Wood's "standard procedure" i f a d o c t o r ' s r e p o r t
i n d i c a t e d a claimant would be d i s a b l e d , a l e t t e r would be s e n t
advising t h e claimant t o f i l e a claim w i t h i n one year. There i s
no l e g a l requirement t h a t t h e c a r r i e r must send such a l e t t e r . The
-
burden i s on t h e claimant t o f i l e a claim, n o t on t h e i n s u r e r t o
s o l i c i t claims.
A t t h e f i r s t hearing, claimant attempted t o make something
of t h e f a c t t h a t h i s former counsel was t h e same a s t h e employer's
counsel. However, a s pointed out h e r e t o f o r e , any contention of
e s t o p p e l i n t h i s r e s p e c t was abandoned u n t i l a f t e r t h i s Court's
order of February 7, 1972. A t t h e f i r s t hearing, c l a i m a n t ' s a t -
torney s t a t e d :
"m, ITELLCOME: Yes, let me make this clear for the
record, for the ~oard'srecord. We are not contending
that there was any overt misleading by anyone, either
Teslow or any representative of Teslow. II
After hearing additional testimony on May 19, 1972, the
hearings officer observed:
"At the time the claimant engaged Bolinger to repre-
sent his legal interests in connection with the acci-
dent, he, Bolinger, became an agent of the claimant
while at the same time he was an agent for Teslow
Consolidated. (Section 2-101, R.C.M. 1947)
"The interests of the two principals were parallel
and the same in the pursuit of the action for damages,
while at the same time the interests of the two princi-
pals could have been in conflict in the pursuit of any
action relative to a workman's Compensation Claim.
"A review of the evidence in the file and the testi-
mony at the hearings fails to disclose any indication
that this possible conflict had any influence whatsoever
on ~olinger'sfailure to file a Claim for Compensation
on behalf of his client and principal. He mistakenly
believed that the claimant was not entitled to compen-
sation payments and apparently gave no thought to pos-
sible future complications that may arise. II
If Mr. Bolinger made a mistake in his understanding of the
law at the time or in dismissing a possible compensation claim
as not worth the effort, such mistake is attributable to claimant
and acts as a bar to any assertion of an equitable estoppel by
claimant. Section 2-209, R. C.M. 1947, states :
* * a principal is responsible to third persons
''ik
for the negligence of his agent in the transaction
of the business of the agency, including wrongful
acts committed by such agent in and as a part of the
transaction of such business, and for his willful
omission to fulfill the obligations of the principal. 11
Tn the instant case, claimant is the principal, Bolinger is the
agent, and the employer and Argonaut Insurance Co. are the third
persons.
This Court stated the essential elements of equitable estoppel
in Lindblom v. ~mployers' Etc. Assur.Corp., 88 Mont. 488, 494, 295
"Generally speaking, the following are the essential
elements which must enter into and form a part of an
equitable estoppel in all of its applications: '1. There
must be conduct---acts, language, or silence--amounting
to a representation or a concealment of material facts.
2. These facts must be known to the party estopped at
the time of his said conduct, or at least the circumstances
must be such that knowledge of them is necessarily
imputed to him. 3. The truth concerning these facts
must be unknown to the other party claiming the bene-
fit of the estoppel, at the time when it was acted
upon by him. 4 The conduct must be done with the
.
intention, or at least with the expectation, that it
will be acted upon by the other party, or under such
circumstances that it is both natural and probable
that it will be so acted upon. * * * 5. The conduct
must be relied upon by the other party, and, thus
relying, he must be led to act upon it. 6. He must in
fact act upon it in such a manner as to change his
position for the worse; in other words, he must so act
that he would suffer a loss if he were compelled to
surrender or forego or alter what he has done by rea-
son of the first party being permitted to repudiate his
conduct and to assert rights inconsistent with it. I I I
(Emphasis added)
Thus, it is essential to establish an equitable estoppel
that the party sought to be estopped have knowledge that he is
misleading the claimant and an intention to mislead the claimant
to his detriment. Here, Mr. Bolinger testified that at the time
he talked to the claimant he had a mistaken impression of the law.
He did not know that he was mistaken and he had no intention of
misleading the claimant. Therefore, an equitable estoppel has not
been established.
Before the Board, claimant relied on the case of Levo v.
Gene-Shea-Morrison,128 Mont. 570, 280 P.2d 1086. However, Levo
is clearly distinguishable in that there a "company" attorney gave
advice to the claimant; he was not an agent of the claimant as
Bolinger was in the instant case.
The Board was correct in ruling that claimant was not entitled
to compensation because no timely claim for compensation had been
filed. The district court erred in reversing that decision.
Accordingly, we reverse and order the case dismissed.
/Chief Justice
Mr. Justice Gene B. Daly dissenting:
I respectfully dissent to the view of the majority.
Simply, stated, the doctrine of equitable estoppel, as applied
to the Montana workmen's Compensation Act, creates an exception to
the one year statute of limitations stated in section 92-601, R.C.M.
1947, if the claimant is misled or otherwise prevented from filing
his claim by ( ) the employer or its agent (McCoy v. Mike Horse
1
Mining Co., 126 Mont. 435, 252 P.2d 1036 [company doctor]; Levo
v. Gene-Shea-Morrison,128 lont. 570, 280 P.2d 1086 [company lawyer
and company personnel manager& (2) the insurer or its agent
(Lindblom v ~mployer's Etc. Assur. Corp. 88 Mont. 488, 295 P
. @
1007 [insurance company agent]); or (3) the Industrial Accident
Board or its agent (~urkovichv. Industrial Accident Board, 132
Mont. 77, 314 P.2d 866 [agent of the board]].
The testimony of Mr. Bolinger, in hearing before the Board,
quoted in the majority opinion, demonstrates that claimant Ricks
relied upon Mr. Bolinger to resolve his industrial accident case.
The following additional testimony by Mr. Bolinger in the hearing
before the Board demonstrates the misrepresentation made to Ricks:
"Q. Did Mr. Ricks ask you to file a claim.
"A. I wouldn't think he asked me to file a claim. I
don't think he would have known whether he should or
not. The thing was discussed, but when he filed a
claim I don't think he said that. He didn't have an-
other attorney, and I was the one that knew the facts
about his case. I did discuss workmen's compensation
to the extent of whether or not he wasn't relying on
anybody else as far as a claim was concerned, and
actually I thought---I was under the impression, unless
you were off 2 weeks, it wasn't worth filing a claim.
That's the recollection I have about it.
"Q. You think you may have advised him that it was
hardly worth fooling with?
"A. Yes. II
The quotation in the majority opinion from Lindblom enumerating
the essential elements of equitable estoppel is misleading because of
the omission of the remaining five sentences in the quoted para-
graph. They are:
"'It will be seen that fraud is not given as an
essential requisite in the foregoing statement.
It is not absolutely necessary that the conduct
mentioned in the first subdivision be donewith
-
a fraudulent purpose or intent, or with an actual
and fraudulent intention of deceiving the other
party; nor is this meaning implied by any of the
language which I have used, The adoption of such
an element as always essential would at once strike
out some of the most familiar and best established
instances of equitable estoppel. Undoubtedly a
fraudulent design to mislead is often present as an
ingredient of the conduct working an estoppel; but
this only renders the result more clearly just, and,
if I may use the expression, more conclusive. I
(2 ~omeroy's Eq.Jur., 4th ed. 1644.) This language
does not conflict in any way with what was said by
this court in Waddell v. School District, supra. 1 I
(Emphasis added)
The district court, in its disposition of this case, recognized
the advice given to Ricks by the attorney representing both Ricks
and Teslow concerning his workmen's compensation claim was a
misrepresentation of material legal facts. It does not appear
that this misrepresentation was made intentionally nor fraudulently,
but that is not a necessary component for the application of the
equitable estoppel principle. Ricks did not know the true facts
of the law concerning his claim, and he reasonably and predictably
relied on the misrepresentation made to him, to his substantial
detriment. The attorney-client relationship existent between the
attorney and the defendants herein, at the time the misrepresenta-
tion was made, precludes them from taking advantage of the conse-
quences of that misrepresentation.
This Court in its application of the law of estoppel in
Levo v. Gen.-Shea-Morrison, 128 Mont. 570, 576, 280 P.2d 1086,
stated:
"The doctrine of equitable estoppel is a flexible one,
founded in equity and good conscience; its object is to
prevent a party from taking an unconscionable advantage
of his own wrong while asserting his strict legal right.
Seemingly the only strict legal right we are asked to
adhere to is the statute which was passed solely for the
benefit of the employer and the insurance carrier, i.e.
Statute of Limitations. * * *
"Certainly, if there is any circumstance wherein the
doctrine of equitable estoppel should be extended, it is
in matters concerning an injured workman, where the law
itself says that the Workmen's Compensation Act shall be
construed liberally. "
This Court i n Newman v. Kamp, 140 Mont. 487, 490, 374 P.2d
100, s t a t e d :
"In l i g h t of t h e foregoing f i n d i n g s of f a c t , we
must keep i n mind t h e following w e l l - e s t a b l i s h e d
r u l e s concerning scope of review. Te have h e l d t h a t
J
t h i s court w i l l n o t reverse the finding of t h e dis-
t r i c t c o u r t except where t h e evidence c l e a r l y prepon-
d e r a t e s a g a i n s t i t . [ C i t i n g c a s e s ] S i m i l a r l y , we
s t a t e d i n R i r n i e v. United S t a t e s Gypsum Co., 134
Mont. 39, 44, 328 P.2d 133 (1958), t h a t our duty i s
t o determine whether t h e r e i s any s u b s t a n t i a l evidence
i n t h e r e c o r d t o j u s t i f y t h e conclusion of t h e c o u r t . 11
I f i n d t h e d e c i s i o n of t h e d i s t r i c t c o u r t t o b e supported
by ample and s u b s t a n t i a l evidence and I would a f f i r m t h e judgment