*1 Cоmplaint plaintiffs is made that certain nce evide objection receivedover their inadmissible and that certain findings are not sustained the evidence. Were we say complained that the evidence of was inadmissible and findings complained supported by of are not the evi dence, it still would not alter the conclusion reached In words, court. other to eliminate the evidence and findings complained of, rejecting it would not warrant inus important findings honestly the assessments were made, used, that a method correct of assessment and that the evidence was sufficient to sustain the valuations.
Accordingly judgments are affirmed.
Mr. Chief Justice Johnson and Associate Justices Brick son, Anderson and Morris concur.
HOUSE, Respondent, v. ANACONDA COPPER MINING Appellant.
CO., (No. 8,242.) (Submitted March 1942. Decided June (2d)
[126 814.] *2 Hoover, Dwyer, Finlen, Jr., J. Messrs. W. H. John V. T. Jestrab, Appellant, original Frank F. for submitted an and a reply Baucus, Counsel, Mr. Finlen and Wm. G. brief. Mr. argued orally. the cause Wellington Rankin,
Mr. D. Mr. Arthur P. Acker and Mr. Zimmerman, Respondent, Charles L. for submitted a brie f argued orally. Rankin Mr. cause Goza, Messrs. curiae, brief; Erickson & amici submitted a Mr. Goza,Jr., argued orally. Sam D. cause Mr. Clements, J. Burke Chairman of the Industrial Accident Board, appearing moriae, as amicus submitted a brief and ar- gued orally. the cause
MR. opinion JUSTICE ERICKSON delivered the the court.
Claimant injury received an appellant’s industrial while in employ. He filed with his claim the Industrial Accident Board. hearing After a the was compensation claim allowed and a$21 week was awarded which by multiplying was determined daily wage by six, reciting but that claimant was employed five rehearing week. Petition for was appeal denied and taken to the district court of Bow Silver county. The court sustained the action of the board. From judgment appeal that this was taken. specifications
The raise, first, of error question whether
or not the record sustains finding that claimant suffered an industrial accident and disability existed reason of The supports it. record finding that the claimant disability suffered the claimed and that it continued for the twenty-six weеks for which the award was made. Claimant’s testimony as accident from which the happening to the of the employee injury supported by that of a fellow resulted was present Colman, Dr. who was at the it occurred. who claimant, appellant, stated testifying treated the on behalf of suffering injury which disabled that сlaimant was from a back August September 5th. injury, 10th, him from the up. He stated that date condition had cleared that on the back injury continued, and on this Claimant testified the back point the issue the board and the district court determined against appellant. testimony The as to continuance disability who, supported by Shаnley, Dr. while he that of say say that injury place, could not when the took did there injury an claimant Dr. had been as described * * definitely Colman, and sacro is still that “his back out.” is, then, prove the fact There substantial evidence to injury disability upon continuance which the based, may point. .award is it on this not set aside (Kelly Cо., v. Coast 106 Mont. 78 Pac. West Construction (2d) 1078; Min. Morgan Co., v. Butte 58 Mont. Central testimony
Hie suffering shows that was from Buer- claimant ger’s disease, legs. which affected of his record is not The ¡clear disability may this as to much be due to how condition, originated substantial evidence that there inception with the back injury and of the Buer- not disease, ger’s primarily continuance due injury back and not to the disease. five-day employed regularly
Claimant week. It is injury agreed was the that at the time of the usual mining work week in awarded six-day week, as claimant of a and this is was on signed passing question examine upon error. In we must *4 2874, 2875 These sections 2912, sections Rеvised Codes. part are all a Workmen’s Act. Section “ days, in provides working ‘week’ means six Sundays.” “wages” as “the aver- Section 2875 defines cludes
age daily wages employee received at the time of the injury for the usual hours of in a day, and over- is not to be considered.”
In original form section 2912 appeared part Chap- as a 96, 1915, ter Laws provided (a) in subsection 16 an “for injury producing temporary fifty total disability, pereentum of wages-received injury,” subject the time of the to certain provisions for a maximum and a minimum weekly payment. This section was amended several so as times to increase the cоmpensation by raising percentages, language but as to the dispute, here in has change there been appears no and it now part as 2912, supra. of section Sections 2874 and 2875 were originally enacted Chapter at the (a) same time as section 16 appear Laws of part chapter. of that gist of the contention part here on the appellant is that section 2912 controlling, computing and that in com- pensation wage the actual received week should be used as the base percentages to which the provided in the Act should applied. Claimant, be hand, urges on the othеr that sections may and 2875 disregarded not be and when are- all these together, taken the board’s of computing method com- pensation is the correct one.
In place, first may always be noted board has six-day based awards on the basis of appellant’s, a week. If contention is correct, employee then if injured an were on his job first on the his minimum, would be the as his day’s wage. received would one be The chairman Industrial Accident Board, appearing brief person curiae, points as amicus out other possible result of holding appellant as the Suppose desires. A and B were engaged days employs the same A 100 men six week, employs and B 200 men three a week. Since the same, man-hours worked are the industrial risks are and each will same have the same number of B accidents. If discharge obligation paying allowed to his men three-day of a pay he would out half
411 A as much as the basis the number of mаn-hours on of same week, pays six-day B on the of a the cost work. If A, more. compensation him null same as to no to be the “week,” discussing in legislature purpose had but one n “wages,” fix “weekly wages received,” was to and that and ap- compensation be determined base from which was to plicatiоn percentages. of certain Appellant, urging in that 2874 apply, sections and 2875 language do not relies on the section 2853: “Unless context otherwise requires, the words phrases employed in Act this shall have meanings the here- argues inafter It defined.” in is when section it provided compensation that the shall thе be based on wage received, requires the context of that section that sec- tions 2874 and 2875 have true, no effect. If'that were then in computing compensation last the line of section the to determining- effect that overtime shall not be considered in wages, injured apply, would not a man in and if the in put he compensation which in overtime, should based his be actually on wages received, including the the overtime. Ob- viously provision making intended appellant’s position, have effect. Under man were in- if a jured in a week when he usually worked but one when he days, six compensation worked would be based on the wage actual day’s received for week, wage. or It suggested days that since five up make work usual compensation based daily should be on times wage, five injured though even workman or worked more less than five pay accordingly. and received is no warrant There in the Act for that view. sections 2874 Either аnd 2875 compensation have effect so be must based wage, daily times else or section has effect making them imperative, compensation must be based solelj’ wage injury, on the received at actual if correct, compensation the latter view must be deter- wage wage received, mined the actual be the small because injured time, work full or be workman did not swollen overtime. The result of such a view would be that instead anof Act which would be relatively certain uni- operation form in its and one adequately which would fulfill purpose, provide compensation which is to for in the nature- insurancе, rather than in the damages, nature of our Act operate largely by would the laws of chance and would result great inequality injured paid rate of receiving daily wage workmen engaged the same the- *6 prevent just situation, same In order to a sec- defining tion 2874 defining wages, and section 2875 eliminating computing cоmpensa- and overtime as a factor in tion were enacted. It definite, wanted to make the base and further it determined that within certain limits a workman re- ceiving higher compensation pay should draw more than one drawing wage. a lesser The context of section does not require holding given that sections 2874 and 2875 be no< Chapter 96, 1915, effect. At the Laws of passed,, was wages there no conflict between “weekly received” “ would, working days,” ‘week’ wages means as the 96, daily wage. six times An Chapter be examination of appearing, amendments, Chapter 256, now as Political Code, only possible application reveals of the defini- determination, tions found 2874 and 2875 is in the sections compensation paid, be application to and no other of these- suggested by definitions counsel. .is be legislature Chapter There can no doubt that the in passing 1915, 96 in subsequently re-enacting and in it with some amend- ments, 2874, 2912, intended sections аll should given effect, be of the be- and the intention to gathered compensation from these three clear that sections days. significant should be based on week of six It so¡ originally appeared, section it has been amended as increasing compensation paid by the-- as to increase thе to be be- percentage wage paid. Those increases would to be they computed if from which are made ineffective the base changed sought. could be here
41» original light changed of the conditions The advent operate to amend purpose cannot enactment and its pay compensation provided Act. Workmen’s —not the actual injured employee,in which case damages to the measure of course, be the conclusive would, of received pain, loss, plus as that be the paid, would be pro Act was to purpose rather suffering —-but industry to- place insurance, the loss on the a form vide charges the- injured workmen would not be insure that the 481, 280 Co., 85 Mont. public. (Betor v. National Biscuit Co., 546, 289 Pac. 641; Copper Min. 87 Mont. v. Anaconda Kerns satisfy this- compensation required to amount of arbitrarily less arrived purpose necessarily had to be more or legislature. enactments of seсtions This did may Act, and we 2912,2874 and and other sections of the disregard not them. five-day Aveek, attempts, one
With advent three session, and one session, in the 1933 session, the Act to reach the 1941 been made to amend have de by appellant, for but all were the result here contended may may situation as we feated. We take note of this with, charged executive of the Act the board *7 Commission (See ex rel. Public Service its administration. State 1020; 200, 202, 67 A. L. R. State Brannon, v. 86 Mont. 283 Pac. 267; Miller In Morgan Knight, ex 76 245 Pac. rel. v. Mont. (2d) 643; Agency Porter, 93 Mont. State- surance v. Ririe, 213, 190 Pac. v. 56 Utah Board Land Commissioners of Act, Compensation its- purpose Workmen’s When thе passed, executive- history, time it was the the conditions at the attempts- subsequent unsuccessful it, of and the 2874 and clear that sections considered, to amend it are it is in with purpose, were not conflict section. they a have they passed, and that the 2912 at the time 2912, and when given Avithsection they be effect intended that they support considered with that section of the action judgment board and the of trial court. Affirmed. Angst- Mr. Chief Justice Johnson and Associate Justice man concur.
Mr. Justice Anderson : I am part unable to agree majority opinion relating to the says amount of allowed. The law that the claimant paid “sixty-six shаll be of the basis per two-thirds weekly wages centum of the received at the injury” time of the but limited to the maximum and minimum allowances per $21 $8 of week. This can mean thing, and that wages is that the each working received week computation. full time shall be basis of con- What shall employment stitute full between matter contract is employer employe. they agree upon and the When days number work thereby. in each bound employer Neither employe days. nor the can demand more And wages the total working received in a week when full time in weekly wage. is the employe The case working this five paid day. per еmployment- rate of For full time $5.25 he received weekly earnings, $26.25 each week. That was his weekly wages. Sixty-six That is the fact. and two-thirds cent, weekly wage and that is the amount $17.50, weekly compensation. which should be allowed as For twenty-six weeks the total amount is instead $455, $546 Allowed by the board. says Compensation board, findings,
The Law “the requires Board, compensation multiply figuring n daily wage by upon to arrive at a which compensation.” rate and the done, to base the That District Court sustained the board. expressly require the board Law does not
415' day compute compensation on the basis of a six work week.. to interpretation the board’s of the law. As the basis- That is they take the definition of the word of such controlling. law The “week” as stated in the Law, phrase definitions, says in a list of word and that ‘Week” working days, Sundays.” means six This defini- includes tion, they say, be taken account whenever week must into consideration, “weekly wages” is a matter is. аnd so when earnings working- spoken of in the law it means the six day week, nothing else. given absolute,
The the- definitions in the law are not made “Unless, general provision being given as to the effect to be that requires, phrases employed otherwise words and in. context ’’ meanings Act shall have the hereinafter defined. subject language The is referred that to be fact, actuality, something construed is a matter an that has- already transpired, weekly wage which the claimant re- injury. Upon inquiry ceived at the time he suffered the we find $26.25. that it was That was what he received each for a full Aveek’s wage. work. It The time was his put eight days. he in еach week was five hour That was his- regular employment. majority full As stated in the opinion, agreed it Avas injury, at the time of the was- mining the usual Avorkweek in the place
To upon language the construction contended for employed- away gets facts, from something and finds be- Multiplying daily wage by a fact which is not true. six: gives day him credit for one that he not throws- did work. It day’s per- into his total one labor labor that someone else day’s, industry employed, formed in which he was earnings that was received someone else. The any could not have intended such result and should not clearly expressed. find it to be so unless intention was by resрondent support cited contention cases part-time employment for the week deal with and in- statutes, spee- under termittent some of them *9 computation exactly ifying how the shall in such cir- be made any problem Here we have have cumstances. no nor express legislative direction as to how it should be dealt problem. case, if that were In instant claimant was working employment. in full Five regular industry work week in which he was em- particular ployed in which he was engaged. question employ- There is no of loss of time working problem simple ment. He full time. strained it is under the and unwarranted difficulty that the arises and the unreasonable and law unfair result is obtained.
Mr. Justice Morris:
I dissenting opinion concur of Mr. Justice An- the above derson. CO., Appellant,
JARDINE MINING v. BACORN al., et
Respondents.
(No. 8,205.) (Submitted March 1942. Decided June (2d)
[131 258.]