*1
BERGAN,
BERGAN, Fatale,
ORA DeETTE
OSCAR
Claim
VALLEY MILLING
ant
and Appellant,
v. GALLATIN
COMPANY, and AETNA CASUALTY & SURETY COM
Respondents.
PANY,
Defendants
No. 10075.
May 6,
Submitted
1960. Decided
1960.
Rehearing
July 26, 1960.
denied
William L. Jardine, Stephenson, Baillie and Blewett & Weaver, Falls, Great William L. argued orally Baillie re- spondent. DERRY,
HONORABLE Judge, GUY G. sitting District place of MR. BOTTOMLY, JUSTICE delivered Opinion of the Court. Bergan,
Ora DeEtte Bergan, prosecuted widow of Oscar has appeal judgment this court from the of the district court eighteenth district, denying her for com- judicial claim al- husband, her she pensation based on the death of Here- leges result industrial accident. occurred of an claimant, re- after, appellant referred and the two *2 spondents as are referred to defendants. Wood, compensation George claim was first heard before Board, Feb-
hearings the Industrial Accident on officer for 26, 12, 1958, ruary hearing August 1958. The was continued taken, at was further and the cause Subsequently deemed taken submitted and under advisement. hearings of findings of fact conclusions officer and substance, the adopted by and Board. In law these were alleged Board that her husband died found that claimant his arising a result of and of accidents out of course 2, 15, 1956, January employment on or before December and 1957, alleged injury, employer and that at the time of his his Compensation Plan II was enrolled under of the Workmen’s Casualty Montana, Act Aetna of and insurance carrier was Surety Company, herein; & that at time of defendant death, alleged injury married to the time of his he was 18; minor under that as of the claimant and had no children death, weekly wage $55.38; his that average time of his Bergan 13, 1957, coronary dis- Oscar died on March of heart timely injury ease; Bergan give that Oscar failed notice employer; timely filed a for that claimant herein claim compensation Board; Industrial Accident allegation that support are claimant’s facts insufficient Bergan arising course accidents out of and in the Oscar suffered employment by Valley Milling Company, on or of his Gallatin 1956, 2, 15, 1957; that the about December facts allegation support insufficient claimant’s rela- are of causal 15, 1956, alleged injuries tionship between the on December January 2, 1957, Bergan’s and Oscar death. law, Ber- As its Board found conclusions that Oscar industrial accident on December not suffer gan did January 2, 1957, employ the Gallatin while in the Valley Milling give timely notice Company; he failed to 15, 1956, and alleged injuries of his accidental of December January 2, 92-807, provided R.C.M. section 1947; relationship was no causal between Oscar Bergan’s alleged injuries death of Decem- accidental 15, 1956, January 2, ber the fact 1957; reason of Bergan that Oscar did not suffer an industrial accident within Act, meaning of the Workmen’s rea- Compensation fact, son of the timely give Oscar failed to notice of his injuries, and by reason of the fact that no causal relationship alleged injuries, exists between the and Oscar Bergan’s death, may compensation claimant’s claim for be maintained.
Claimant appealed from the decision of the Board to the district court County. By for Gallatin the minutes of the court November 1958, it is appear made to appeal that the *3 heard in the district solely upon court the record in the made hearing before the Subsequently, examiner. trial the court made its findings entered of fact and conclusions of law sub- stantially as in findings stated the by Board, made but with this additional law, conclusion of to-wit: “That was no direct presented evidence accident or accidents hearsay since testimony standing is not adequate alone evidence before the Industrial Accident Board to establish claimant’s by ease necessary preponderance of evidence.” By her specifications error, claimant contends that Board, instance, in first trial second, court in the was in in holding timely error decedent give failed to injury employer notice of to his and that such failure is a bar proceedings; Board court erred in its find- ing that Oscar did not sustain an industrial accident cause, and that aggravate the accidents did not or died, accelerate the heart condition from which he in dis- missing widow; the claim of the the district court erred
30 concluding entering of law making its conclusions stood hearsay behalf of claimant introduced on thereby adequate, and testimony was not alone and that said In- testimony by the impliedly concluding the admission of such subject dustrial Accident Board to review. made before in the record confusion is some
There
by
trial court.
subsequently reviewed
and which
Board
by
claim
offered
court,
evidence
found
the trial
As
that testi
has held
entirely hearsay. While this court
ant was
rejected
accepted or
hearsay, may be
mony, based on
Board,
Accident
(Ross
Industrial
the Board
v.
discretion
repeatedly
has
362) this court
80 P.2d
106 Mont.
testimony of witnesses
given to
weight to be
said that the
in the trial
instance and
in the first
exclusively
Board
is
for the
479, 97 P.
Webb, 37 Mont.
See Bowen v.
in the second.
court
374, A.L.R.
P.
Wallace, 85 Mont.
839; Wallace v.
992; Dean
391, 26 P.2d
Dettwiler, 95 Mont.
587; Rentfro v.
is
13,
The first witness reference counsel claimant’s question A was asked in the case. and filed by William Penttila a statement hearsay. entirely Counsel is based Penttila statement posi- stated his objected to the evidence for defendants statement, objection to raise the tion that following hearsay. The based on presented, which was evidence transcript: in the shows Nie- questioning, Mr. allow this
“Mr. We will Wood: connected that it is to be woehner, understood if not, objection sustained will be evidence; if by direct *4 is taken present objection at the time. The later show the record ahead. Let advisement. Go under objection counsel for de- continuing line of is a inquiry.” this line of fendant proceedings show further record does not amplify position the It the taken above statement. does indicate beginning hearing. examiner The find- the at the of the ing, hearsay standing of the court that evidence alone adequate preponderance to sustain claimant’s ease evidence, ease, finding is in effect a that from the whole giving weight entitled, it was deemed found proof. court claimant not sustain burden of In did findings, other both the Board and the found there was court relationship no industrial accident- no between the causal resulting accident and the death. The additional con- necessary clusion is not When it decide the ease. was found industrial occurred, no In the case was ended.
event, merely points out that the this court in case did not regard hearsay evidence as sufficient establish the claim. consistently While court disregarded has technical rules Compensation cases, of evidence in Workmen’s and has been interpretation most liberal in its law affecting such claimant, claims in favor of it must be conceded here evidence, support case, accepted of claimant’s being to be justify sufficient to overruling of the order of the Board court, trial require go beyond far court previous rulings determining court in what is the preponderance of evidence. A brief resume of the evidence show will this to be true.
In support ease, produced of her claimant four wit nesses, Dr. Epler, Deane C. testified as a witness for the claim ant and also was as a witness called for the defendants. He made an examination of the decedent 1956. time, At he found extensive damage heart muscle opinion, left bundle branch block. In his decedent had had a long-standing coronary previously heart disease. He had treated Bergan. Mr. The examination in December was the first occa condition, he had investigate gave sion the heart and he opinion undoubtedly changes had had in his *5 hypothetical was period question for some of A heart time. (based hearsay evidence) stating that put on doctor man-lift, hand-operated operating decedent was elevator or conveyor upper part grain and while in the elevator the of recog- plugged stopped, and the belt which fact was became jumped sound, immediately him from the that he nized main pull on the man-lift started himself to the down just of grain; floor to shut off the flow that as he reached floor “jumped main man-lift and he hit the he him in that region”; said that hit the chest he cleaned pain he pile good all; grain but said that he didn’t feel of Epler evening got Dr. that when he home. had called history upon doctor then asked based that The whether “ in this your knowledge an facts of accident and medical case”, opinion, he he could state reasonable had that with certainty, heart de- as to whether terminal failure which veloped December, could the unusual have been caused response of that His exertion and excitement accident. say only that could have been severe could exertion pain enough bring of chest and done some on this attack damage subsequently got progressive him into heart fail- never stated on examination decedent ure. doctor cross employed history any him accident while gave any specific of he discussed Company. defendant He stated fully during period; this quite him entire condition any such acci- history possibility of any no accident or the of possibility 1956 .or of occurring in December of dent by de- given ever him some accident given: question and answer was cedent. This your and know- “Q. examination him a result of As necessary it been condition, or would have ing of his to have necessary have strain this accident to this condition which exertion, brought have on —or No, on, say, heart A. brought let’s attack? had to have just sleeping lie been could have in bed without “Q. you And say then that heart attacks they sort straining exertion, with no or are usual? A. Very common.
“Q. words, And in other doesn’t take strain exertion bring No, A. sir. an attack?
“Q. type With a No, of condition he had? A. sir. *6 “Q. Would it possible have been then for him to be completely immobile, say, sleeping sitting chair, or a or not moving any particular portion body, of and still * * * have had a heart Entirely possible. attack? A.
“Q. words, In other day that he had these chest pains, pains very chest could well have occurred * ** without activity ? right. whatsoever A. That is “Q. particular damage heart that The he had would say undoubtedly that had it be correct to occurred over period certainly time? considerable of A. would think changes cardiogram so. that on the From occurred changes we overnight.” weren’t would see by When called as a witness defendants, Epler Dr. testi- injuries witnesses, fied that related the several based hearsay them, from decedent statements to did not cover injury expect the kind of an one would precipitate or cause any damage to the heart or additional damage the heart. explained patient he days He that had seen the two after the cardiogram accident at which time his was taken show- damage muscle, ing to the heart but his white blood count normal, sedimentation were both rate of suggested both damage that had no acute damage he additional 24, within 48, or 72 hours of the time the tests were made. This question given: and answer were
“Q. words, In other that the deceased’s condition aggravated any particular not from within, say, a 72 or previous 48 hour time that examination? A. was,” is no evidence that
There of an unsworn William Penttila consists Industrial Acci- by him received statement made Decem- February 3. but which dated dent Board on during ber in which he states: the winter decedent; 1956-57, hospital visit he went to the Decem- during him the information that given Mr. hand-operated and while up- the elevator ber he went conveyor plugged upper part in the became elevator recognized sound stopped; belt that he this from the immediately pull jumped on the man-lift and started flow; grain to the main floor to shut himself down descent, man-lift becomes on the short distance leaning extremely diffi- bound elevator and is at this pull through seemed to be more so cult to hurry. main he in a Just as he reached the because he jumped man-lift hit the floor off the he region, thereafter pain hit him said that in the chest day and called Dr. good he did feel for the rest of hearing At the before evening got when home. Epler that family old Board, Mr. Penttila testified home; that he had at his had lived friend of decedent and *7 what hospital know and was curious to on him at the called hospital, and be in and how he came to the his condition was flu the first “that had had some related to him he decedent he December, in middle of the sometime the month but accident, he said de- the explaining sick.” In gotten man-lift and hopped “he on to him that cedent stated sticky real thing he said was and that pulled himself down it diffi- a bind and was half-way there was about down and hurry- feet, he was or three but pull through that two cult to got he near the ing kept going he and as and on floor before hurry a way floor, in such he was got all the man-lift off, jumped grain shut the flow lever and hit that just as I hit the floor he said and of the man-lift a off few feet got pain, but he said ‘I up reached and shut that lever off’ and then he said ‘I went down to look pile at that of grain my took and time and grain shoveled out of ” bin.’ original
It should be noted that statement sent to the Board testimony, varied from his statement in his in jumped in the first that “he off the instance he stated man- just lift” testimony as he reached main in his before jumped the Board he stated he the man-lift few few feet off the floor. Roy
The witness, Surface, M. pur- made a sworn statement porting 27, 1958, to be subscribed March on received Industrial April Accident Board on in which he days stated that within few after December he stopped in at the Bergan, elevator to visit which the decedent him day December, 1956, told that on the 15th heard noise in the up man-lift, elevator. “He went it but hit top. hard when working he hit belt wasn’t right, grain running got up over when he there. When jarred the man-lift hit top it him. When he came down, something*happened so that man-lift hit the bottom. It hit the jarred way bottom hard. He up said he was all ’’ through body his legs. In his before the hearing*examiner, he went to Mr. testified out see Ber- gan 15, 1956, story and “he told me the whole then, just got hurt; after he and that told decedent then him thought ‘he grain elevator, was running upon over something wrong up up there and he went the man-lift and it going up stuck on him it when he went kind of jarred there, then, him got down, why when he back just, way, just about dropped half (indicating) like Decedent told him that it hurt him from the bottom of his feet top clear to the of his head.”
It separate will be seen thus there are two versions of how *8 alleged occurred, accident of December purportedly pain on he felt the By decedent. one version related by the to the feet from the elevator
jumping few jarred top hit the bumped and when the elevator other he was witnesses coming down. These two going up and bottom acci- only testify with reference were the ones to 15, 1956. dent on December only who witness, Maryott, Frank L. was the witness
Th January 3, 1957. He testified happenings testified as elevator; in that on helper for at times decedent was ele- Bergan Mr. in the January, he was with the 3rd of vator, response in call from decedent for assistance. to a well; Bergan had Bergan feeling At was “he bothered top a hot box and taken the nuts off the says just can’t him,” and he “I bothering his heart was for me.” it, you and take off do like to have come Summarized, testimony goes no further than to show done eight or ten feet and had the ladder decedent climbed box; that decedent was nothing take some hot but nuts but had stood there and watched help not able to the witness is job removixig the box. This completed hot him he only strain on to show accident or evidexiee January 2nd.) in have been (alleged 3rd the claixn to examination, if of Mr. he was asked he knew cross On in specific accident being in involved in answer: and he stated say No, axxaccident. I coixldxi’t he had
“Accident? in you specific know “Q. don’t about And No. A. January of 1957?
“Q. ycra told about here Except incident you came down and wanted the ladder and he went through Well, hospital, sir. it? A. Yes finish ” Jaxiuary. most of strain, any, if of the extent no evidence is noted It mostly by way axxd generalities given.
37 giving of conclusion of the witness without the basis for the conclusion. defendants,
On long- behalf of four witnesses who were decedent, time friends of and him var- who had visited with ious following 15, 1956, times January 2, 1957, testified that anything decedent had about an never said acci- dent herein, decedent, them. The claimant the widow of testified, never hearing either in the before the Board or before court, only that could conclusion be drawn from this fact would be if had been she advised decedent, employer would have testified. she so The made an report affidavit no accident had ever been by decedent, knowledge and he had no such acci- dent. gave Decedent never examining physician any history of an accident.
In testimony, opinion view of the we are of the that we can- say, not law, a matter of against the decision is weight of the evidence. trial court
The found that required by notice section R.C.M.1947, 92-807, inas effect at involved, the time herein not given by decedent. We have found holding that the trial court that decedent did suffer industrial accident is sustained fact, the evidence. In view of this a ruling on point required above is not anything said thereon would be dictum. judgment of the district court affirmed. and MR.
MR. CHIEF JUSTICE HARRISON JUSTICES and ANGSTMAN concur. CASTLES ADAIR dissents.
MR. JUSTICE rehearing: for petition
On MR. JUSTICE ANGSTMAN dissenting from denying order rehearing:
Upon study case, further of this on motion rehearing, for majority
have sufficient doubt about correctness of opinion petition rehearing should be believe that granted reargued. and the cause August day
DONE this 15th 1960. WILFRED W. POEPPING, Plaintiff Respondent, v. Appellant. E. MONSON,
ROSE
Defendant
No. 10020.
May
Submitted March
1960.
1960.
Decided
Rehearing
July 26,
denied
1960.