WILLIAM M. INFELT, CLAIMANT AND APPELLANT, v. MERLYN J. HOREN AND CORCORAN PULPWOOD COMPANY, EMPLOYERS, AND INDUSTRIAL ACCIDENT BOARD AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, DEFENDANTS AND RESPONDENTS.
No. 10007.
Supreme Court of Montana
October 28, 1959
December 2, 1959
346 Pac. (2d) 556
The plaintiff prayed for an accounting covering the delay rentals received by the defendant. The evidence here discloses that the lease was executed on July 10, 1951, and delay rental at the rate of fifty cents per acre was due on or before July 10, 1952, and each year thereafter during the life of the lease. Defendant testified that she had received such delay rental for the years 1952, 1953 and 1954. Plaintiff is entitled to one-half of the delay rentals received by the defendant in each of the years that the same were paid following the execution of the lease. The description of the lands, here involved, discloses that there are two lots contained therein, but the proof fails to disclose the acreage of such lots, and since the delay rentals are dependent upon acreage, it is not possible for this court to ascertain exactly what the correct amount of delay rental is, and for that reason the case must be remanded for further proceedings with regard thereto.
For the reasons herein stated the cause is remanded to the district court with instructions to enter a proper judgment reforming the warranty deed to include therein the mineral reservation, and to take further testimony as to the acreage and delay rental feature, ascertain the correct amount due plaintiff and enter judgment in her favor therefor. It is so ordered.
MR. JUSTICES BOTTOMLY, ADAIR, ANGSTMAN and CASTLES concur.
Submitted September 17, 1959. Decided October 28, 1959. Rehearing Denied December 2, 1959.
George Niewoehner, White Sulphur Springs, for appellant.
Keller & Magnuson, L. V. Harris, Helena, for respondents.
Paul T. Keller and L. V. Harris, argued orally.
MR. JUSTICE ANGSTMAN:
This is an appeal by claimant from a judgment of the district court of Gallatin County, affirming the findings and conclusions of the Industrial Accident Board in a case involving workmen‘s compensation.
The application for compensation involved two separate accidents.
The first accident occurred on February 11, 1952, while claimant was employed by the Corcoran Pulpwood Company in Gallatin County which operated under Plan II of the Compensation act and was insured by defendant the Employers Mutual Liability Insurance Company of Wisconsin. This accident con
The employer contends that the action was proper because of
The record shows that claimant was 61 years of age when this accident occurred. He was employed in cutting timber, and while so doing a log rolled over him and he was injured. He was hospitalized for about 6 weeks and on crutches for about two months thereafter. He returned to work and attempted to carry on as usual but the record shows he was still partially disabled and was unable without help to do the work that he formerly had been able to perform. He paid his brother “between $20 and $35 a week” to help him do his work. Also other men helped claimant gratuitously by carrying his saw which the record shows claimant was unable to do himself.
The real point of difference between the parties so far as the first accident was concerned depends upon what wages claimant received at the time of the injury and what he was able to earn thereafter within the meaning of
Defendant contends that at the time of the injury claimant was receiving $41.17 per week and after the injury, even though he paid his brother $35 per week that he still received net wages of $65 per week.
Claimant‘s view is that at the time of the injury he was earning and capable of earning $100 per week if employed full
“Q. What were you making just before the first time you were hurt in February 11th, 1952? A. Well, right at that time I wasn‘t making too much because it was too deep a snow, but I made up to a hundred and sometimes better a week before that.
“Mr. Swanberg: Well, the record shows that he was a piece work cutter and his average for the last quarter to February 8, 1952, was $41.17 per week. Is that about right, Mr. Infelt?
“Witness: Yah. In the last part, yes.
“Q. Yah, but he said, Mr. Swanberg said, that the average for the last quarter to February 8th, 1952, was $41.17? A. I must have made more than that. I don‘t know; I don‘t remember now.
“Q. Well, now is your chance to tell us what your version of the thing is? A. Well I know I made better money than that all the time.
“Q. Well, what were you capable—what were you able to earn then and what were you earning when you didn‘t have the handicap of some particularly bad weather? A. Well, I‘m sure I was making around ninety to a hundred and some dollars a week because I was one of the top men over there for pulp.”
Obviously, it is unfair to measure claimant‘s wages at the time he was injured by the amount received weekly when the snow was so deep that he couldn‘t work. There is no evidence in the record to dispute his testimony that he earned as much as $100 per week when the weather was such that he could put in a full week‘s work.
“‘Wages’ mean the average daily wages received by the employee at the time of the injury for the usual hours of employment in a day, and overtime is not to be considered.”
“Where there is no applicable provision prescribing a formula or method for determining an employee‘s average weekly earnings under particular circumstances, the determination must be based on the employee‘s actual earnings during a preceding period sufficiently long to include the usual seasonal fluctuations in hours of employment, wage rates, etc., to establish reasonably and fairly his true earning capacity.” 99 C.J.S. Workmen‘s Compensation, sec. 293, p. 991.
Since claimant‘s statement that he was receiving $100 weekly stands uncontradicted that must be taken as the measure of his earnings before his injury when working full time.
After he returned to work he could not obtain that much without paying to his brother the sum of $30 per week. That amount is clearly lost to claimant because of his injuries. He asks but 55% of that amount or $16.50 weekly from May 11, 1952, to December 20, 1954, or a period of 136 weeks or a total sum of $2,240. Claimant ought not to be penalized for making a bona fide attempt to work.
We recognized a claimant‘s right to compensation in Shaffer v. Midland Empire Packing Co., 127 Mont. 211, 259 Pac. (2d) 340, even though he might have been receiving as much money after the accident as before. That case is particularly applicable here where claimant not only had gratuitous services from fellow workmen but had to pay to his brother $30 per week in order to make as much as he did before his injuries on February 11, 1952.
The Supreme Court of Kansas in Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640, 641, had this question under consideration and disposed of it by saying: “But it would never do to say that the courageous workman who sticks to his task notwithstanding his pain and injury is to be penalized for so doing. Neither would it do to say that an injured workman who in pain and
To the same effect is McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 Pac. (2d) 39, 118 A.L.R. 725, and cases therein cited, and compare Bochar v. J. B. Martin Motors, Inc., 374 Pa. 240, 97 A. (2d) 813.
It follows that claimant is entitled to be paid the sum of $2,240 by the Employers Mutual Liability Insurance Co. of Wisconsin, the same representing the sum of $16.50 per week for a period of 136 weeks, being the period from May 11, 1952, to December 20, 1954.
As to the second injury, the facts and the law applicable are comparatively simple. Claimant was awarded and paid compensation from December 20, 1954, the date of the second injury to August 15, 1955, at the rate of $26.50 per week. The Board at first stopped payment on April 18, 1955, and upon complaint of claimant it renewed payments until August 15, 1955, at which time payments were stopped. On the hearing held on October 22, 1957, the Board renewed the payments but started the payments as a result of this hearing from July 18, 1957, and ordered them to continue for not exceeding 500 weeks in all. There is no question raised as to the validity of the award of $26.50 per week for not exceeding 500 weeks.
Claimant contends that the payments should have commenced where they left off, namely, on August 15, 1955. As a consequence the only issue as to this injury is whether claimant should be paid $2,650, being $26.50 per week for the 100 weeks between August 15, 1955, and July 18, 1957.
Defendant Board contends that claimant waived his right to compensation for the period between August 15, 1955, and July 18, 1957, because of his delay in making application. With this we do not agree. It is true that when the Board discontinued payments on August 15, 1955, it advised plaintiff that he should make out a report if further payments were claimed. Up to that time all of claimant‘s dealings with the Board were made by him personally and without the benefit of counsel. On March 2, 1957, he appointed his present counsel to represent him.
There is no basis for the contention that claimant forfeited any rights because of delay in asserting them. After a timely claim has been made and acted upon as here, the Board has continuing jurisdiction under
“If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established, or compensation terminated in any case, where the maximum payments for disabilities as provided in this act have not been reached, adjustments may be made to meet such changed conditions by increasing, diminishing or terminating compensation payments in accordance with the provisions of this act.”
It is the command of our statutes that compensation whether for temporary disability (
The issue is important to claimant in that he is now about 67 or 68 years of age and may not live out the 500 week period if that period be held to have been interrupted between August 15, 1955, and July 18, 1957.
We hold that claimant‘s contention that he is entitled to $2,650 being compensation at the rate of $26.50 per week for the 100 weeks starting August 15, 1955, and ending July 18, 1957, must be upheld.
The cause is remanded with directions to modify the judgment in accordance with the views herein stated.
MR. JUSTICES BOTTOMLY and ADAIR concur.
MR. CHIEF JUSTICE HARRISON and MR. JUSTICE CASTLES dissent.
On Motion for Rehearing.
MR. JUSTICE ANGSTMAN:
The Employers Mutual Liability Insurance Company has filed a petition for rehearing herein in which it is asserted that the court‘s opinion overlooks
“Should a further accident occur to a workman who is already receiving compensation hereunder, or who has been previously the recipient of a payment or payments under this act, his further compensation shall be adjusted according to the other provisions of this act, and with regard to his past receipt of compensation.”
As pointed out in the opinion, claimant‘s first industrial accident occurred on the 11th day of February, 1952, and the second one on December 20, 1954.
The Mutual Liability Insurance Company was and is liable to claimant for all compensation due him under the first accident or until the second accident occurred. It is not liable to claimant for compensation arising by reason of the second
Hence, the Insurance Company is not affected by
The Insurance Company also asserts in its motion that the court overlooked that part of
“The board shall have continuing jurisdiction over all its orders, decisions, and awards, and may, at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter, or amend any such order, decision, or award made by it upon good cause appearing therefor. Provided, that the board shall not have power to rescind, alter, or amend any final settlement or award of compensation more than four (4) years after the same has been made, and provided further that the board shall not have the power to rescind, alter or amend any order approving a full and final compromise settlement of compensation.”
There is no basis in the record to sustain the contention that there ever was a final settlement or award in this case.
It is true that claimant signed a receipt on which was written the following:
“Do not sign this receipt unless you intend to end payments of compensation and close the case.”
There had been no hearing with respect to any final settlement. There is nothing in the record to indicate that claimant knew what the receipt stated when he signed it.
The first part of
The motion for rehearing is denied.
MR. JUSTICES BOTTOMLY and ADAIR concur.