Chmielewska v. Butte & Superior Mining Co.
261 P. 616
Mont.
1927
Check Treatment
*40 MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

This is an appeal by defendant from a judgment in favor of plaintiff.

The facts are that one whose true name seems to have been Jan Chmiel vel Chmielewska died on January 12, 1925, of injuries received in the course of his employment while he was in the employ of the Butte and Superior Mining Company, a corporation. The deceased, a Pole, left a wife and child residing near Warsaw, Poland. On January 18, 1925, Jan Sierocki, a friend of the deceased, by letter of that date, notified the Consul General of the Republic of Poland at Chicago of the fatal accident. The Consul General instructed his western representative, C. T. Haas, an attorney at law at Portland, Oregon, to take steps to safeguard the interests of the heirs so that they might obtain the benefits of the Compensation Act. Mr. Haas immediately advised the Industrial Accident Board of his intention to file a claim for compensation on behalf of the widow, and requested forms for the presentation of the claim, saying he had authority to do so. The board informed *41 Mr. Haas the Butte and Superior Mining Company was a self-insurer, and he should get the forms from that company. Haas informed the company that he intended to make claim for the widow and requested that proper forms be sent him. This the company did promptly, and with equal promptness Haas sent the forms to the Consul General with detailed instructions for their execution and a special notation that the utmost haste was required in having them executed by the widow because of the six-months’ limitation for filing the claim.

The Consul General’s records show that he received the forms on February 20, 1925, and, after translation and drawing the regular requisition, forwarded them to the Court of Peace of Biala-Podlaska, Poland, on March 12, 1925. The documents were executed by the widow, Marjanna Chmiel vel Chmielewska, on April 25,1925. Documents showing identity and relationship were issued by the Bureau of Vital Statistics on May 15, 1925; these were legalized by the court on May 16 and all the documents were legalized by the circuit court of Biala, Poland, on May 17, 1925. Then they were legalized and super-legalized, by the Ministry of Justice at Warsaw, by the Foreign Office, by the American Consul General at Warsaw. The documents with their seals were then returned to the Foreign Office, and eventually forwarded to the Consul General of Poland in Chicago, in whose office they arrived July 23, 1925, eleven days after the expiration of the six months elapsing after the death of Jan Chmiel vel Chmielewska. Delay from July 23 to October 5, 1925, when the documents were sent to Mr. Haas is explained by the Consul General at Chicago thus: “by intervention of unpreventable seasonable restriction in the consular staff, making translation and dispatch of documents impossible.” The papers were filed with the Industrial Accident Board on October 16, 1925.

The defendant filed a protest against the allowance of the claim for compensation on the ground that under the provisions of section 2899, Revised Codes 1921, the claim was filed too late. After consideration the board denied the claim. *42 Upon appeal the district court held the conclusion of the board to be “unreasonable under the law and all the circumstances of the case,” and ordered judgment for plaintiff.

Section 2899, supra, reads as follows: “In case of personal injury or death, all claims shall be forever barred unless presented in writing under oath to the employer, the insurer, or the board, as the case may be, within six months from the date of the happening of the accident, either by the claimant or some one legally authorized to act for him in his behalf.”

The question is whether this statute is susceptible of a construction . which will excuse the failure to file a claim for compensation “within six months from the date of the happening of the accident.” Counsel for plaintiff urgently call to our attention section 2964, Revised Codes 1921, which provides that whenever the Compensation Act or any part or section thereof is interpreted by a court, it shall be liberally construed. All of the decisions of this court in construing the Compensation Act have been in accord with that policy. The statute was referred to specifically in Page v. New York Realty Co., 59 Mont. 305, 196 Pac. 871, and Dosen v. East Butte Copper Mining Co., 78 Mont. 579, 254 Pac. 886. Moreover, by the provisions of section 4, Revised Codes 1921, all the provisions of the Codes and all'proceedings under them are to be liberally construed with a view to effect their objects and to promote justice. But in the construction of a statute the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted. (Sec. 10519, Rev. Codes 1921.)

“Our duty is not to enact but to expound the law, not to legislate but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the state government.” (Cooke v. Holland Furnace Co., 200 Mich. 192, L. R. A. 1918E, 552, 166 N. W. 1013.) When the terms of a statute are plain, unambiguous, direct and certain, the statute speaks for itself; *43 there is naught for the court to construe. So it is here; the statute says plainly and unequivocally that in case of personal injury or death all claims shall be forever barred unless presented in writing under oath to the employer, the insurer, or the board, as the case may be, within six months from the happening of the accident.

As plaintiff’s claim was not filed within the period prescribed by the statute she cannot recover. The statute is mandatory and a compliance with its requirements is indispensable to the existence of the right to maintain proceedings to compel the payment of compensation. (Georgia Casualty Co. v. Ward (Tex. Civ. App.), 259 S. W. 1103; Inland Rubber Co. v. Industrial Commission, 309 Ill. 43, 140 N. E. 26; Northwestern Malt & Grain Co. v. Industrial Commission, 313 Ill. 534, 145 N. E. 89; Poccardi v. Ott, 83 W. Va. 166, 98 S. E. 69; Cooke v. Holland Furnace Co., supra; Rubin v. Fisher Body Corporation, 205 Mich. 605, 172 N. W. 534; Dochoff v. Globe Construction Co., 212 Mich. 166, 180 N. W. 414.)

Counsel for plaintiff rely especially upon Culurides v. Ott, 78 W. Va. 696, 90 S. E. 270, and Matwiczuk v. American Car & Foundry Co., 189 Mich. 449, 155 N. W. 412. In each of these cases there had been a bona fide, though defective, application made for compensation within the limitation prescribed by the statute. See comment in Poccardi v. Ott, supra, where the court said: “The statute makes no exception in favor of delayed applications; it is imperative.” Matwiczuk v. American Car & Foundry Co., was commented upon in Cooke v. Holland Furnace Co., supra, and that case was followed in Kalucki v. American Car & Foundry Co., 200 Mich. 604, 166 N. W. 1011, wherein it is said: “The. six months’ limitation of time fixed by the Act for claiming compensation under it is plainly expressed with no qualification and no latitude given, by proviso or otherwise, to the board administering it for extension of time. ’ ’

The statute may be deemed a harsh one, but its mandate is clear and unequivocal. “There is no room for construe *44 tion, and the difficulties attending upon a judicial variance from tbe legislative rule are obvious.” (Schild v. Pere Marquette R. R. Co., 200 Mich. 614, 116 N. W. 1018; City of Milwaukee v. Miller, 154 Wis. 652, Ann. Cas. 1915B, 847, L. R. A. 1916A, 1, 144 N. W. 183.) The action of the Industrial Accident Board was right.

The judgment of the district court is reversed.

Beversed.

Associate Justices Myers, Stark, Matthews and Galen concur.