503 P.2d 535 | Mont. | 1972
No. 12296
I N THE SUPREME COURT OF THE STP-TE OF MONTANA 1972 REX LEWIS, P l a i n t i f f and A p p e l l a n t , -vs - THE ANACONDA COllPANY e t a 1. , Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t , Honorable Frank E. B l a i r , Judge p r e s i d i n g . Counsel o f Record: For A p p e l l a n t : Jack M. Scanlon a r g u e d , Anaconda, Montana, F o r Respondent: Henningsen and P u r c e l l - , B u t t e , Montana, Rex F. Henningsen a r g u e d , B u t t e , Montana.
Submitted: October 1 8 , 1972 Decided 8flV 2 4 1972 a ~ 9 F i l e d : q f p ~ t .. Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
This is an appeal from a judgment entered i n t h e d i s t r i c t court of Deer Lodge County on April 22, 1972, following a ruling t h a t the second amended complaint f a i l e d t o s t a t e a cause of action; and the motion t o d i s - miss i t , was granted without leave t o amend.
I t appears t h a t on December 7 , 1960, p l a i n t i f f Lewis, an employee of the Anaconda Company, suffered an industrial accident resulting i n a fractured l e f t wrist and f r a c t u r e of both nasal bones. Lewis f i l e d his claim f o r compensation and received compensation payments of $229.44. On or about March 1 , 1961, Lewis a s s e r t s he had a discussion w i t h one John Emory, the claims manager of the Anaconda Company, and was advised t h a t upon his return t o work his benefits under the workmen's compensation a c t terminated and he should not see an attorney as there would be no need t o .
Thereafter, i t i s alleged, John Emory drafted a petition f o r a lump sum settlement f o r $1,825, forged Lewis' name thereon, submitted the same t o the Industrial Accident Board and i t was approved on March 27, 1961 .
On April 3, 1961, John Emory requested a check from the Butte claims o f f i c e
f o r the $1,825 and i t was issued and Emory delivered t o the claims o f f i c e a release w i t h the forged signature of Lewis. Then, allegedly, Emory forged the name of Lewis t o the check and negotiated i t .
Some years l a t e r , i n 1971, Lewis had another industrial accident and he was represented a t t h a t time by Jack M. Scanlon, Esq., as his attorney. In reviewing the claim f i l e this attorney discovered these f a c t s and notified Lewis i n March of 1971. Thereafter t h i s action was commenced seeking t o recover damages f o r fraudulent conversion by means of the forgery of his check f o r $1,825, praying f o r special damages of $9,028, $30,000 general damages f o r mental pain and anguish, with a second cause of action seeking exemplary damages in the amount of $400,000.
The gravamen of p l a i n t i f f ' s contended cause of action i s t h a t by reason of h i s i n j u r i e s he was e n t i t l e d t o the lump sum settlement and was de- prived of i t by the fraudulent actions of the agent of t h e defendant Anaconda Company.
However, he did not have anything t o do w i t h the proceedings involving the p e t i t i o n f o r the lump sum settlement, i t s approval and pay- ment of the amount approved. The d i s t r i c t judge i n his decision of April 18, 1972, on the motion t o dismiss p l a i n t i f f ' s second amended complaint, s t a t e d :
"No where, e i t h e r i n the second amended complaint o r the deposition of the p l a i n t i f f , does i t appear t h a t he suffered the l o s s he complains of. He held good jobs during the 10 year i n t e r v a l ; was even examined by the Anaconda Company Medical S t a f f and placed back t o work on one occasion. No complaint was made by him i n a l l of the 10 years. In h i s deposition he says he breaths w i t h d i f f i c u l t y through one side of h i s nose, but a t no time has he sought medical care f o r i t o r any condition about which he complains i n this action. "Moreover, he has had no medical opinion t o the e f f e c t t h a t he has a 25 per cent permanent d i s a b i l i t y as a r e s u l t of the industrial accident occuring December 27, 1960. " I t seems t o us t h a t i f he had a 25 per cent perma- nent d i s a b i l i t y , i t would have shown up i n a ten year period and t h a t he would have sought competent medical help a t some time during t h a t period. "No medical opinion presently e x i s t s t o the e f f e c t t h a t p l a i n t i f f ever suffered a 25 per cent permanent or p a r t i a l d i s a b i l i t y . "Finally, there is no c l e a r allegation t h a t t h e plain- t i f f ever suffered o r now s u f f e r s a 25 per cent perma- nent, p a r t i a l d i s a b i l i t y in the complaint as a r e s u l t of the injury he received December 27, 1960. * * *" There must be a determination by the Industrial Accident Board a s
t o whether or n o t Lewis was e n t i t l e d t o any f u r t h e r compensation or t o a lump sum settlement f o r his i n j u r i e s , (Section 92-821, R.C.M. 1947.) P l a i n t i f f wants t o r e l y upon the alleged forged documents a s establishing his r i g h t s under the workmen's compensation a c t , b u t i n this position he i s c l e a r l y i n e r r o r . Before any form of re1 i e f can be considered i t i s incumbent upon him t o s a t i s f y the Industrial Accident Board t h a t he was e n t i t l e d t o such f u r t h e r compensation. We held i n P r o f i t t v . J . G . Watts Const. Co., 140 Mont. 265, 370 P.2d 878, t h a t our courts do not have j u r i s d i c t i o n t o make such a determination i n the f i r s t instance, there must be a previous hearing and finding by the Industrial Accident Board. Nothing herein con- tained shall bar subsequent action before the Industrial Accident Board.
The decision of the d i s t r i c t court of April 18, 1972, was c o r r e c t and the judgment entered thereon We concur:
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