*1 without I think evidence there sufficient to take the wrs jury. case to the

Mr. Justice Erickson: Angstman.

I opinion in the above of Mr. Justice concur Appel- PAULICH, Respondent, CO., v. REPUBLIC COAL lant.

(No. 7,926.) (Submitted September 27, February 29, 1940.) 1939. Decided (2d)

[102 4.] *2 Ap- Mercer, W. for Murphy Messrs. & Whitlock and Mr. W. original brief; Mr. pellant, supplemental submitted an and a argued Counsel, the cause Garlington, Mercer and J. Mr. C. orally. Mettler, Respondent,

Mr. F. W. submitted brief argued orally. the cause

MR. opinion JUSTICE ERICKSON delivered the of the court. The respondent, employee ap- Luke was an Paulieh, pellant company. coal appellant Plan was enrolled under (Rev. No. Compensation the Workmen’s Act Codes seq.), sec. et injury at time of the industrial suffered by respondent. regularly compensation He filed his claim Board, with the Industrial Accident hereinafter referred to as on November 1931. The claim was contested appellant and, hearing, July granted after 28,1932, the board on respondent 56 per week, $19 weeks *3 being: board’s order

“It adjudged therefore Republic ordered Company pay Coal (4) compensa- to Luke Paulieh four weeks per at the of $19.00 tion rate week temporary as a total dis- ability pay to Luke Paulieh 52 compensation weeks per week, $19.00 at the rate of in addition per- as thereto, partial disability, manent payments August to date from 20th, 1931, in full and final settlement of his for com- claims arising injuries pensation alleged August out 1, of of 1931, 1931, 7th, August 20th, and November 1931. adjudged is further ordered and accept

“It that Luke Paulieh compensation per $19.00 4 temporary week as a weeks total compensation disability and 52 per weeks at the rate $19.00 thereto, permanent partial as a week, addition disability, compensation settlement of his in full and final claims aris- alleged injury August accidental ing 1st, of his on 1931, out 7th, and November August 20th, 1931.” respondent appealed this order From district court county Judicial District for the Musselshell, the Fourteenth findings 11, 1932, hearing after on October weekly com- findings board, except that the affirmed the week, the date per pensation $19 $20 was raised from Novem- changed to payments were made was from which to be February appeal dated was ber 1931. This first order on modify its court to respondent moved the Subsequently 1933. motion weekly award, which the amount conclusion as to March 16, 1933, Subsequently, was on March overruled. in conclu- recites 25, 1933, entered, the final order was which disability temporary total sion: his “That permanent paid by defend- partial disability he the said be ant, per period the sum of 56 weeks from $20.00 week for the 17th, 1931, accept November said defendant and that he from compensation; defendant, Republic such Com- Coal pany, entitled have to credit for such sums as heretofore paid by been them.”

It will be noted that the before the district court on appeal expiration was held before included weeks judgment. in the judgment And it is also to noted be that the provision of the district court does not contain the found in the accepted order the board that the aas full and final award. April 11,1933,

On judgment, amount credits, of this minus together interest, paid. Subsequently and after re- ceipt of the amount judgment, ap- filed an (Paulich peal in this court. Republic v. Coal 97 Mont. (2d) 514, in this court dis- ground acceptance by missed on the that the respondent of the judgment precluded fruits of the an attack him judg- on the ment, saying: the court “Counsel was tendered, and accepted, judgment; the fruits of the this act was inconsistent with the right appeal; the election of the one necessarily excludes the enjoyment the other.” *4 respondent July 12, 1934, petition

On filed a with the board, provisions 2956, of section under the Revised Codes, pro- which part may, any that the board vides time after the date award, “review, diminish, increase, within the limits pro- Act, any compensation vided this upon awarded grounds 178 disability person in whose favor such award (italics

was made ours) has either increased or diminished or petition terminated.” respondent In this claimed dis- that his ability aggravated. had hearing, 4, been After and on March 1935, the stating board denied and petition, dismissed the in its conclusions: “The board does not believe Luke suffering Paulich in December greater disability than in 1932 he was when originally his claim was decided the Industrial Accident Board. The evidence of his own ex- pert physician positive that his condition is the same and only exception the doctor makes is that he rated [the doctor] the claimant percentage at too low original at the time petition examination. The of Luke Paulich for an award of an additional compensation and further is therefore denied and dismissed.

From this order appealed and, to the district court after hearing, trial and that court September 13, 1935, sus- ‘‘ findings tained the board. In its of fact the court recites: The July said 12th, petitioned claimant on the Industrial Ac- cident Board to make a further and additional award ground disability that the due to said industrial accident had very materially (italics ours) increased since the Industrial Accident Board.” finding, In in speaking ‘ ‘ of the order of the the court said: made its deci- [It] sion dismissing and order and denying petition of claimant for an award of additional compensation and further on the ground that said suffering greater claimant was degree no disability from said accidents than at the time of the hear- first ing before the Industrial Accident Board.” The court found findings suffering that Paulich was greater its no degree of disability and sustained the board. recites part: “Luke Paulich is not entitled to recover any other or further from said defendant.” that this later It is be noted prior was acted on Republic Lunardello v. Co., decision Coal to the 101 Mont. (2d) which 53 Pac. determined in this court on 19, 1935, and the decision December Meznarich Republic v. (2d) 82, Coal decided on December *5 judgment appeal perfected of 1935. was from the 12, No district court. peti- a 19, 1936, respondent

On filed with the board November Hearing of for Determination tion “Petition for denominated Directing Payment Compen- Disability of Additional and Order Judgment Dis- and Order of the sation in accordance with the ’’ respond- 28, By petition trict March 1933. this Court of Date sought weekly compensation period payment ent to have the by statute, claiming that extended to the maximum allowed March disability judgment his continued after the date 28, changed peti- 1933. condition in He did not claim a this petition tion, July 12, as he 1934. did petition appellant answer, To this last filed its and to this reply. 24, respondent May board, filed a On 1937, answer hearing taking any testimony, denied and without without basing petition, theory this its action on dismissed jurisdiction grant sought. The had no to the relief petition seeking was board took the view one to enforce an the court. The states in order of board its conclusions: * * * petition “The now before the to enforce alleging disability. order one an increase in the court andds not jurisdiction. has no The board therefore respondent Subsequently application rehearing, filed an for appealed He to the which was denied. then district court of the Fourteenth Judicial District from the order of board dis- petition rehearing. missing application his and his appeal heard the court below on December 1937. At was hearing respondent court for moved the leave to introduce introduced testimony in addition to that necessary bring it was the facts of the case reason that hearing Appellant before the court. time of the down to the matter, except objected as a matter the consideration objection overruled, only, and this the court of review proof Judgment heard. were examined witnesses July 1938, given on respondent the sum favor computed this According judgment, sum was to the $5,341. from and after total amount the basis of December, 1932, the date of the-first day 3d court, original before the district in which the award was respondent lump including June as a payment sum of all accumulated amounts It due. is from that this is taken. primary questions presented ap- Two are this peal. question The first that must determined is: Did the And, board have to hear the ? *6 proceed second: properly powers Did the court within when heard the matter on as it did? question,

In order necessary to answer the first it is first transpired examine had particular prior what matter filing the of the last petition. argued acceptance

It by is that the Paulich of the fruits of judgment judgment the first that renders conclusive and that position now Paulich is payments to seek further upon in any original judgment. based that manner It is true period compensation that far accepted so as the covered the judgment concerned, respondent is conclusive on he question (Paulich Republic cannot now it. Co., supra; v. Coal Shugg Copper Co., v. Min. Anaconda 46 Pac. (2d) period But as to not covered award compensation, compensation accepted by and the respondent, judgment (Meznarich Republic is not conclusive. v. Coal supra.) Co., appellant contends,

To would nullify provisions hold as Code, providing our sections for continuing part jurisdiction on of the to take care situa- those accepted the claimant the full where amount of tions award disability accep- later discovered that his hnd continued. His weekly award, weekly awards, or the total of the tance application compensation his for additional not bar based could disability. continuing on argued by appellant judgment Sep- that

It is then petition respondent, on based for addi- tember theory compensation, on the that his condition as tional judicata. increased, is res disability As been had has indicated provisions petition was based on the heretofore, that of section provides that additional 2956, which person disability of the that the it is shown awarded where to the increased. Prior has is made favor award whose generally under- it was Cases, supra, and Lunardello Meznarich award, when statutes stood that under the Montana com- precluded recovery of additional sum, final judgment, contemplated pensation total in excess of the disability increased. had showing, unless was a that there filed, on petition theory was on that the second It both the theory by the conclusions alone, evidenced determined. the matter was court, district board and the supra.) Copper v. Anaconda Min. (Shugg judicata matter then September only as 13, 1935, is res disability of determined, namely, that the considered, and then aggravated. had not increased become language of quoted the conclusions heretofore We have respond- court, which in effect are that the board and of the hearing on the disability the time of the ent’s was the same at award, original petition second as it was at the time aggravated, they specifically disability not been hold that his has solely ground. was denied his theory entirely an different present petition based *7 petition, although language and from the second petition dismissing yet it denying it, and court is broad findings reading a and conclu- apparent from casual only thing considered board and that the sions disability, increased question of it is court was the judicata. is res matter that jurisdiction to entertain the board has That the by the two hearing is recent cases heretofore grant the settled Republic v. and Lunardello Coal d—M e znarich cite Codes, pro Co., supra. Section Revised Coal Republic v. jurisdiction continuing over have all shall “The board vides: may any time, upon awards, and orders, decisions given parties to be heard is to the opportunity notice, after any order, such alter, or amend decision or rescind, interest, good appearing cause therefor. Pro by made award alter, rescind, have or power shall not vided, compensation more than award of or any final settlement amend provided years made, further 'two after the same has been rescind, or power shall have the alter not compromise approving settle- amend a full and final order Any ment compensation. order, decision, award rescind- or ing, altering, prior order, decision, award, or shall amending or original have or the same effect as orders awards.” construing seq., section and sections the court et in the con- said: “Plaintiff Lunardello Case correct his disability tention type finally that after a has been ascer- tained, whether temporary-partial, temporary-total, per- it be manent-partial, permanent-total, payments must be during the disability, exceeding continuance of the the maxi- mum time, in prescribed accordance with the law and as therein particular disability type necessary for the involved. It is not order, that the total allowance all be included one or all be time; say made at what we mean one is that no order be full considered as allowance unless the maximum is con- templated therein, and included and even then such order subject still change allowance must to modification or under jurisdiction continuing board.” inAnd the Meznarich fact, Case the court said: “The mere purported then, that the board to make the order of December 1931, ‘final,’ is of no effect, provision force or as that vesting was in contravention of the statutes power order in the board, and the board could not thus divest itself of the continued in it (101 vested the Act.” (2d) And further the court said: Act, “As our in com jurisdictions, in other mon with those declares each instance respect the several classifications of disability, that the weekly compensation particular fixed under the section shall be period ‘during disability,’ paid rights claimant’s are only by legislature declaration of the limited as to the maxi itby weeks fixed as a limit.” mum number of in last noted that two cases to be cited the fix- It is order weeks to be allowed, *8 number ing the recited final, present full in was while the order ease, the al- that on the petition first though order in the was that judgment of the district court on appeal language, the from the order of first significantly provision tlie board that left ont the the award be and final settlement respondent’s claim full compensation. authority On the cited, of the last the two cases jurisdiction board grant did have respondent to leave prayed for in petition, should, his and it therefore, granted have hearing. Inferentially the district court ruled in the so appealed from, decision holding its that entitled to compensation holding included that within board had petition. hear Appellant urges that proceeding the court erred

hearing appeal. argues on It that if it should be held judgments the former heretofore discussed were not a bar petition, this then all that the district court could do would to dismiss the petition, or, most, send it back to the board with direction hearing. to hold a This indirectly court has con problem presented by argument sidered the this a number of occasions. On at least two different af occasions this court firmed proceeded the lower court where it exactly here.

In Roundup Nicholson v. Coal 79 Mont. Min. Pac. 270, proceeding board in the dis very trict court was much the same as case. There a this petition was filed with the de board which the widow of a sought ceased workman to have his death declared to be due an accident, compensa industrial and to secure allowance of an petition tion. With the were various exhibits. de filed accompanied fendant answered and answer with certain affi physicians persons. davits of and other These affidavits stated workman died heart failure —a that the natural cause. The receiving instruments, these various grant after refused to In that case board ef hearing and dismissed claim. denying the application, fect answer said pleadings, exhibits attached the two demonstrated and various and, therefore, industrial accident there was no there e., petition determine, i. that the board nothing jurisdictional facts which the no board answer revealed present case, says judg board proceed. could jurisdictional answer lack show same filed with the ments therefore, denied here. and, facts, *9 184 pro appeal supra, on the district court Case, the Nicholson the here, and found for defendant.

ceeded as evidence heard “And, on stating opinion, court, This in the in its said: facts tes introduce oral trial, permitted party court each before questions involved, court had timony all so that the on independent showing a made complete case, of ’’ v. Butte in Willis Pilot board. The lower court its order cited 124, power Co., 58 190 to the effect that the Min. Mont. Pac. retrial. of than of the district court is of review rather Case reversing This in court in the Nicholson court district ‘‘ effect, disposed and, in said: The held no board on pleadings questions claim as a on the on motion although law, an as to whether pleadings raised issue natural from by decedent’s death caused accident or resulted must decision, causes, and, at its order to arrive showing parte made have into ex taken consideration the company. stands question board’s on a law decision very findings fact on a different situation from its based hearing. apply evidence a The rule invoked does received at not questions law, application to decisions on and has appeals determined on ‘cold record’ certified to those pointed Morgan [Morgan board, Case court out Co., [633], 641, 58 194 Pac. re v. etc. Min. Mont. Butte 496] controlling to; it is in cases the court permits ferred not which application has testimony, and no when the additional additional differing testimony presented shows fact conditions from those permits appeals in which On all the court such to the board. testimony, is a re-examination the trial the nature additional made before the board con review, a so far as the record but, as was not cerned, the additional (Dosen additional evidence. is de novo as to v. trial such 880; 254 Copper Min. 78 Butte Mont. Pac. East Board, Acc. v. Industrial Novak adduced, all of the evidence have considered should court presented appeal according questions determined the evidence. law and supra, v. Industrial Accident Board, of Novak case In the reports, with the together claim doctors’ his filed claimant investigation was apparent It etc. some considerable holding hearing the the board. Without appeal contended compensation, allowed but the claimant on opinion the In the the award not sufficient. hearing was no fact that “Owing said: the condition [the testimony, oral had], permitted the court Novak to introduce And 1921.” authority under section Revised Codes review, board for findings further: “As there were no hearing and' being denying an from an order *10 after conclusions, judgment of findings, from the and the findings,” on independent the based hearing, court made its judg- The the court. evidence adduced for the first time before then, have two We, ment of affirmed. the district court was where the lower court Montana cases in which this court affirmed' appellant complains right of the it did what here. in Novak proceed district it the Nicholson and court to did therefore, and, apparently argued, Cases nor not contested right evidence directly pass to hear court did not on However, where court assumed hearing there was no below. and, power, in those two cases that court had that the district think, correctly we so. inquiry ap-

In on discussing in the district court the field of peal hearing, from court an order of the board after said supra: “Terminology in Copper Dosen v. East Butte Min. here is a re-examination and re- is of little moment. The trial any every upon determination in If and event. record review, in board, the re-examination is the nature of but the judgment. If permits must render its own the court ad- court proceeds introduced, evidence to be the trial ditional board, evidence heard before the consideration of the and that permits in addition thereto. To that which the court extent the given court a wide discretion in trial is novo. The is de Compensation any part Act, matter. Whenever the or or section court, liberally interpreted it shall be it, construed. parties Codes.) proceed- Both to the action or (Sec. Rev. right appear in ing have the and it shall district duty appear. the board to If the find court shall shall be findings and that —‘the conclusions of the board upon the trial law, are accordance with that the facts or the or either they ought to be other or different those [from] board, any rule, finding conclusion, order, or that and or requirement or unreasonable, court shall rule, set finding, judgment, aside such conclusion, order, decree, or requirement board, change modify said or or shall justice same as law and also require, shall the court shall make enter any finding, conclusion, order or ’ required, legal premises. shall be shall in the proper be (Sec. 2961, Rev. Codes The intention the law is concerned, complete justice court shall full do to all so far possible as it be to do so within the limitations the statute.” expressed Case, attitude of this court as Dosen

supra, light when considered in and Novak Nicholson Cases, supra, determining to be seems to what extent the district go court will presented matters not it discretion, determining has a wide its action the district court guided by should the rule that should do full complete justice words, to all concerned. other dispose the lower completely court should matter appeal if it is at all possible.

Appellant degree great relies to v. Pilot Butte on Willis *11 Min. Co., supra, which prior case was decided to the decision Nicholson, supra. the Novak and Cases, Dosen In the none of eases directly holds, only cited counsel is there one that impliedly holds, one that that there hearing where was no be board, fore appeal the the district court on cannot admit testi mony finally hear determine the matter. Most of the Doty cited, like Fund, cases v. Industrial Accident 102 Mont. 783, 511, (2d) Republic 59 Pac. Rom v. Coal 94 Co., Mont. many (2d) 161, others, 22 Pac. consider only problem powers of district court on appeal of where there was a They are problem the board. directed before to the of findings given weight be board on the evidence concerned, also, They degree, it. are to some before with the permit which the district court should extent to additional tes point they all timony, hold uniformly but on that is that

187 court. the district discretion entirely within the matter they concerned retrial, are review and matter of discussing the e., court, i. functioning the district problem of the with novo, even entirely de matter hear the court the district should cor- to the as indulge presumption in no record, on cold on passing This court fiuding board? rectness entirely matter is heard where the has question said in the proceedings are board, the before the the record important additional only, that where but nature of a review re- one considered testimony is adduced, then the matter is of the correctness trial, presumptions and the rules as to Co., Coast Const. (Kelly v. West finding board’s obtain. do not (2d) 106 Mont. 78 Pac. is not court held the district

This has indicated and precluded testimony through same witnesses admitting from board, and on the same that were testified to matters Kelly Case, supra, and in that where the it said degree important so from the adduced and differs tes- timony matters, board on the same the record adduced before the disregarded.

Appellant Shugg Copper cites the case v. Anaconda Min. urges supra, particularly language cited in that page Mont., page case found on 168 of 100 of 46 Pac. (2d) reopen “If follows: it be conceded jurisdic- continuing the case facts invoke states sufficient to inappropriate here taken tion of the was an attempting changed method have the condition of the in- jured party Original determined. all determine questions respect of fact to awards of (see. Rev. 1921), board Codes vested' and the board question heard or determined the has never as to whether or not developments in new the claimant’s condition warrants further compensation. prelimi- The board award of determined the jurisdiction, law as to nary question act; and refused to therefore, proper remedy that the seem, it would would have (State compel to act Loney mandamus to ex rel. been Board, 408), Accident *12 Pac. v. Industrial power the the of appeal court on of that review to determine findings ought ‘whether sustained, or the of the board to be findings and or whether not such the are reasonable under all (See. 1921; circumstances of case.’ the Rev. Codes Willis v. Pilot Butte Min. there Here was nothing upon to, review; the court to and it called did, novo, hear the case de but then it decided was without that determine the matter as- of which has thus to. jurisdiction. original sumed

An examination of the above ease there indicates that what is way ordinarily said is by dictum, agree of and the we that proper pursue, orderly to the one, course indicated is that portion quoted of case However, above. we feel that provisions Codes, of section Revised indicate legislature granting very powers had mind the broad' to ‘‘ appeal. the district court party on board and each to proceeding action or right before the board shall have proceeding, appear duty and it shall be the board so If appear. court shall find from trial, such afore as said, findings and that the conclusions board are not law, ought or accordance either the facts or that they be other different than those board, or or that finding conclusion, any order, rule, requirement or unreasonable, the court board is shall set aside such find decree, conclusion, order, judgment, ing, rule, or requirement change modify or said or shall the same as law justice require, and the court shall shall also enter make and any finding, conclusion, order or that shall re be ’ proper premises. legal in the quired, or shall statutory provisions procedure contemplate with- filing ordinarily out doubt that board be the grant a trier the facts in the first shall latter express But this section the statute instance. seems to legislature plainly will even rather where the hearing, to hold a the district fails (See the matter at quotation determine once. proceed Copper Co., Butte supra.) v. East We Dosen would like from portion quotation repeat particularly from that *13 ‘‘ opinion which reads: The intention the law the court is that complete justice shall do full it concerned, to all so far as possible to do so within stat- the limitations of the ute.”

Were it not for section the statute limitations of prevent would finally, determination the matter as was done by here, the lower court the absence of before the a board; language but the in the section when considered light statutory certainly pro- other provisions, does not hibit the final determination of the matter the district court, but rather seems to command it. though

Even Shugg Case, supra, we should hold that the controlling on matter of procedure, there are additional why reasons the lower court affirmed, particularly must be as to the matter of its action in proceeding to hear the ease after determining legal question. appellant introduced evidence the various judgments orders and on which it based its technical defense. The judgment first so introduced recites the respondent fact that suffered an industrial accident, and that injury permanent partial was a one. The second offered appellant, and the accompanying order of the recite that was suffering time per- the same partial disability, manent and that his condition was the same as it was on judgment. the date the first Appellant, then, evidence, years its own admits that for two more, covered this last now court, respondent’s before the condition alleged was what he be, namely: it to disability That his con- tinued as it original was at the judgment. time of the toAs period subsequent judgment, respondent, to the second tes- tified as to earning his condition and power, and was cross- by appellant; appellant examined but offered no testimony in testimony rebuttal. no period It offered that for that respond- disabled, disability ent was not fact or that his less Appellant it be. than he testified to submitted findings fact respondent’s disability but none to the effect did not exist alleged testified, nor that it was not he as same as the judgments. be in first and second court found it no presented We are where there is then situation there dispute substantial the facts. Therefore as to sent nothing would be if the matter were to decide applicable the hearing. back to it for a That situation makes language very recent An of this court in case of Halko v. derson, (2d) 956, 93 Pac. there 959. action quiet property possession title certain real law, a trial entitled, defendant. He was matter jury. Although objected, issues before he proceeded hear a jury, matter without the trial developed from defendant’s own that he had no *14 defense to the action. This court said': “It is well established ** * judgment will not be harmless reversed error. grant A losing will not be reversed to party by jury of a right abstract trial when the record noth discloses ing Shaubut, jury (Hahn for the to determine. v. 45 326, ” case, 123 Pac. In this latter Hahn Shaubut, supra, v. presented discloses, the court said: “So far as the record to us defendant had no defense to re the action. He could not proof allegations answer, fuse to offer the affirmative of his right purely by then claim a abstract jury to a trial after having admitted allegations all of the complaint. It duty his prejudicial to make record disclose error. Such * * * is the rule in this state. So far we know, he has prejudice no suffered whatever.” applicable We believe the rule so announced is Appel- here. entirely legal relied upon judg- lant effect of the former any ments, and did not offer evidence that would it reveal that if the matter were sent to court had defense below. Be- appellant place error, could the district court in fore it was its duty by to make record show some been had proceeding the court’s action prejudiced to hear sending matter, it back instead of board. This whole See, also, not v. appellant Byrd, 585, has done. State 41 Mont. 411, 407, where the said: “It is court 111 Pac. for this error affects the rights determine whether an substantial * * * duty but it is defendant. of the defendant who

191 prejudice claims to make the record It be so show.” also in passing noted the rule of stare decisis view of the applied. Cases, supra, properly Nicholson Novak should (See 7 L., 30, 23 Harris, R. C. sec. Okl. and Palmer v. Rep. 822.) Pac. 138 Am. St. of what view we have said as to the mat ters adjudicated judgment, holding the second view the Cases, this court the Meznarich supra, and Lunardello we appeal

do see how this petition and to the district court can be a collateral attack on the order of the or the judgment of the court in either the proceed first or the second ings, argument and we find no basis that the attack, contrary constitute a collateral provisions to the of section Revised Codes. predicated appellant

Error the admission X-ray pictures evidenceof certain report and a E.Dr. M. pictures Porter. These and letters were for purpose of show respondent’s ing physical condition. Dr. Porter did not tes tify, nor deposition was there produced affidavit covering Error, these matters. even where conclusively shown to have committed, presumed been is not necessarily to have been prejudicial. especially That true here, where the matter was heard before the court and where there ample was other undisputed testimony findings to sustain (Hill of the court. Chappel v. Brothers Montana, Mont. 305, (2d) 819; *15 Noyes’ Co., Estate v. Granite-Alaska 406, 210 Pac. Yergy 96; Ry. Co., v. Helena L. & 213, 39 Mont. Pac. 1201.) 18 Ann. Cas. objected to,

The though evidence even it might have been ob- prejudicial jectionable, was not and' its admission furnishes no (Backer ground for reversal. v. Parker-Morelli-Barclay Motor 87 Mont. 289 Pac. 571; Dockins v. Dockins, 82 Mont. judgment The is affirmed. Angst-

Mr. Chief Justice Johnson and Associate Justice concur. man

'l92 sitting by con- Judge, District P. Leiper, Frank

Honorable parties: sent by the reached agree

I am conclusions unable to with the I wherein majority point out endeavor to this case shall those are erroneous. think conclusions separate proceedings be- respondent The three commenced his Board, all connection fore Industrial Accident compensation growing out of the same accidents. for claim herein, understanding involved gain clear of the issues order to record, with all facts, appearing in this in connection all of considered; well, must be proceedings, three of these I to those the others. facts of each bears relation which the proceedings separately, and each these three consider shall point each bears to the other. out relation endeavor original compensation for was filed Respondent’s claim First. A Appellant hearing was 18, 1931. answered. November respondent re- for and directed that he The found had. board appealed fifty-six Respondent for weeks. per week $19 ceive in a modification appeal resulted district court and per order, increasing week, the award $20 of the board’s attempted affirming order. The the board’s and otherwise The court. appeal judgment was dismissed from that respondent paid in full. made to was award thus n July petition filed a 12, 1934, second Second. On Board, seeking Accident with the Industrial petition. first This addi- awarded under the to that addition injuries alleged have compensation was claimed tional petition forth in same set the first grown out of the accidents again answered, hearing had which was appellant filed. dismissed the board. adduced, was Appeal rehearing was denied. to the district court Motion Testimony had. in addition to where taken, was received. The district court offered law, September fact, conclusions and on findings affirming the order made 1935, rendered No proceeding. was taken dismissing from proceedings had connection with second judgment. *16 relationship a close petition board bear filed with the petition third in connection with the proceedings had effect the proceedings analyzing further and, therefore, before filed proceed to a statement petition, I shall had under the second petition. third with the facts in connection respondent filed with On November Third. claiming additional petition a third Industrial Accident Board de- injuries growing of the accidents compensation for the out appellant set forth. petition scribed in first as above again petition was never Reply filed. This answered. was hearing had hearing no thereon was set down for No was heard time at all the board. note that while It is well to here connection therewith. Hearing for De- “Petition for petition denominated a was Payment Ad- Directing Disability and Order termination Judgment Compensation and Order ditional in Accordance with paragraph three 1933”, of Date of March of District Court paid upon been thereof reads follows: “That there has since Judgment Hun- the said and Order the sum Eleven weekly Twenty ($1120.00), being payments dred Dollars thereby bringing payments weekly per week, com- $20.00 day 4th including December, pensation down to and your petitioner pay- received no other or further has compensation, notwithstanding payments of he was at ment or been, mentioned, is, totally ever since has and still the date last disabled, which was and is permanently well known to fact defendant, Republic Company.” Coal named the above dismissing made its order The board Application therein. re- it had no ground that Thereupon duly made and denied. an hearing was denying from the order was taken of the board the district application and from the plaintiff’s third order rehearing. The cause was set down for trial and denying a district court. At that trial re- came on for counsel, F. W. represented Mettler, Esq., his spondent represented by counsel, Mercer, W. W. appellant At Murphy Whitlock. & commencement of the Esq., *17 respondent to introduce addi- trial, leave counsel for the asked following language: plaintiff using “The testimony, tional the testimony to Court introduce additional now asks leave of to Board, upon the Industrial Accident introduced before which was plain- necessary the ground and for the reason that it is the present time, and the bring the facts the ease down to tiff to dis- regard present his condition of especially the facts to since ability, with what has occurred and the facts connection hearing the Board.” the before objected, part

Thereupon appellant a of which counsel for objection is as follows: hearing whatsoever had and held before

“1. That there was no upon petition Board the most recent Industrial Accident herein, testimony was by plaintiff and no whatever filed Board; it is Industrial Accident taken and before the testimony Industrial Accident only is taken before the where jurisdiction appeal, has when the District Court on Board ’’ testimony be taken. permit additional whatever this possibly involved in question can “4. That one jurisdiction In- question appeal, and that is upon filed the most recent Accident Board dustrial deny prayer plaintiff dismiss of said and to plaintiff, to this petition. said ap- determined this Court this That if it be

“5. have Accident Board did Industrial peal that the reply, then this Court without petition, upon said answer sending an anything, make order the same but jurisdiction to do Board for a Accident determination Industrial back to facts. “I ruled as follows: think it would be court Thereupon the I time, so upon it at this will overrule the ob- to rule better exception Mr. have an Mercer.” you may jection and testimony that all at seen introduced it will be Thus the district court case ivent over this before appellant. objection sworn and respondent physi- testified as to his Thereupon appears respondent’s testimony By that a few condition. cal hearing, respondent consulted district days an time Dr. Great Falls. At that Porter a Dr. Porter of respondent gave letter, stat- respondent examination of appears ing the results that examination. It detail therein X-ray pictures Falls same time someoneat Great took that at the respondent’s joints, which certain of the container X-rays respondent. given were these enclosed was length physical con- great Porter his of Dr. letter describes letter, X-rays This appear. dition. What showed does together through in evidence X-rays, with the were offered duly objected receipt, appellant respondent. Counsel for objection both of letter and of films. was overruled received. Counsel for sworn evidence testified, had to with Dr. but do Porter’s *18 X-ray testimony and the films. Mr. Mettler’s did letter injuries upon merits in the of the case relation to the touch by respondent. testimony all complained That is of by plaintiff. introduced noted, the answered. The appellant As above answer con- appropriate setting entry forth allegations, making the and tained of all of orders hereinabove mentioned and of all of courts, of in judgments hereinabove referred to connection respond- hearings had made with the several claims judgment Sep- ent. relation to the of district court In of judgment resulting ap- (that being from the tember respondent’s order as peal taken from board’s second alleges.- plaintiff, “That said petition), appellants’ answer Luke neglected failed, appeal judg- omitted from Paulieh, and said entry any from the thereof or at other six months ment within neglected failed, anything and omitted to do time, all, and or at steps judgment to have said whatsoever reviewed or take provided by law, all, or form as at and and reason in manner is final judgment and became and decisive and all said thereof appeal, trial said and in connection with said matters disability plaintiff, Court, including said Luke District finally adjudicated and now are and res Paulich, have been judicata.” ad judgments

All of orders and were offered and received these proves short, amply evidence. defendant’s evidence allegations regard. respec- truth of Counsel for this parties proposed findings tive submitted fact conclusions findings, of law suitable to their The court made con- contentions. clusions, judgment rendered the sum $6,221.36. The court found that the was entitled to plaintiff compensation for 444 weeks, follows: From the 3d of Decem- ber, 1932, 5, 1935, March from the last- per week, $19 September per week, mentioned date to $18 per thereafter week for remainder $17 rate weeks; and, appellant required further, pay lump prior sum all such which had accrued entry judgment, together interest thereon at six cent, per Appellant duly from excepted June 1938. to the findings made, judgment. so from such

Appellant’s may be summarized contentions as follows: A. appellant’s That the district court in overruling erred ob- jections to the introduction additional and was testimony. without to hear B. That the which order the district court could have lawfully (1) either dismissing appeal, an order (2) remanding an order the cause to the board with suitable directions. That reason

C. of the district court ren- September 13, 1935, dered this matter has been finally adjudi- adjudicaia. res cated *19 admitting court erred in

D. That the the letter of Dr. Porter X-ray films. and the

I consider these in that order. shall majority opinion that A. holds the proceedings had respondent’s with first connection do not constitute a recovery, and that to a further bar is not entitled to fifty-six for the any further weeks covered by With these I agree. first made. conclusions award says that the district court was without Appellant power, au- jurisdiction hear testimony to or to thority, or render any money district court opinion holds majority judgment. The testimony render and to hear additional jurisdiction to did have opinion appellant I am of the money judgment. majority are conclusions right and, therefore, that the mind in kept in connection must erroneous. These facts be hearing was held That no our consideration of this case: before board, board; that no before offered testi- any additional objected introduction appellant mony district court. before authority de- “jurisdiction” “the to hear and is meant By (15 must be conceded J. It cause.” C. termine a jurisdiction the district court had authority, power, or whatever determining growing hearing and matters or has relation to Compensation are Act, out of the Workmen’s conferred provisions that Act. The terms of district case; power of the district court measure the Act whether had determine the district court therefore, order to power thing do, it did we must look to the to do the which provisions of Act itself. (that being Revised part

Section Codes of Compensation provides: Act), proceedings “All Workmen’s disputes arising shall determine controversies under this act board, elsewhere, be and not and heard and instituted by them, except provided, determined as otherwise this act hereby power, authority, with full and the board is vested try finally determine all matters, such sub- ject only review in the manner and within the time in this mine.) provided.” (Emphasis act ® * * proceedings “All shall instituted be before the board,” all-inclusive, be legislature, seems to but the to make sure, doubly added the words elsewhere”; “and not assurance proceedings begun shall these all further, not before the shall proceedings all be heard and but determined exception, added an Then there is namely, board. “except provided.” act in this otherwise purpose the Act for the us search

Now let finding what provisions contained in exception section 2947. *20 First, exceptions only two, as follows: Act contains two (Sec. provision supreme appeal to court. is made for an exception With here concerned. we are not exception provides other is found section which dis- taking to the from the order the board an appeal, section providing trict court. After for notice said upon upon said “Immediately continues: service board en- notice, district court certify board shall to said said testimony evi- proceedings, including tire all record and court. of said district board, dence with the clerk taken said record, the district Immediately upon certified the return of such cause, shall hearing of said day fix for the court shall upon appellant, upon cause the board notice to be served any. The court adversary party, if there be and also shown, permit additional good may, hearing, for cause upon the permission of such introduced, but, in the absence evidence to be of the be heard on the record shall court, from the the cause of the matter shall by it. The trial to the court board, as certified shall determine whether trial the court novo, upon such de or authority, and whether pursued its regularly or not the sustained, and whether ought to be findings not all the under circumstances reasonable findings are such mine.) (Emphasis the case.” legislature as what me that the intention It seems to proceedings is ex- have these court should district part the possible say clearly as it is as statute the above pressed proceedings All must be com- language. English in the proceedings must be heard and All board. before menced made trier of the board is Thus the board. determined legislature that the dis- intention was the If it the facts. matter where no testi- and determine hear could trict court here, as where mony introduced introduction additional objection timely adversary here; party, testimony in the district legislature using purpose ask, what was then, let me 2960? It seems to me additional, found section the word anything, language means use English if the had adduced presupposes word additional been at the before the board. *21 remaining vestige my

But if mind there were one of doubt wiped by a legislature, about that out the intention of the for, 2947; after closing provisions consideration of section providing proceedings commenced before must be heard and the board is “vested by determined the board—then jurisdiction” with do The power, full and to what? authority, try finally all such statute makes answer: determine “To and part matters.” Not a of such matters —all of them. After clothing authority, jurisdiction “with power, and full try finally to and (emphasis mine), determine all such matters” a say: “Subject condition is added. The statute does not to review”; say: “Subject but it does only (Em- to review.” phasis mine.) proceedings How shall those reviewed? * * * statute makes answer: “In the manner in this act provided. any provision Where do find in we the Act this is, review ? The answer pro- section 2960. And thus the review subject vided for section 2960 is to all of the conditions con- tained in the statute. construing

In these I sections the statute have in mind the provisions 10519, of our section Revised Codes of which is as * * * follows: “In the construction of a statute the office judge simply ascertain declare what is in terms therein, or substance contained to insert what has been omitted, inserted; or to omit what been has where there are provisions particulars, several such is, if possi- construction ble, adopted give to be as all.” will effect to

It provisions seems me that the of this section of our Code apply peculiar here with force.

My interpretation of code, these sections of our my as well as conclusion that the district court was without authority thing done, to here do the it whatsoever has is in accordance and confirmed former decisions of this court. Co., of Willis v. Pilot Butte Min. the case 190 Pac. had 124, 125, this court under consideration the district court to act a matter similar this, and there jurisdiction, said: original “As district courts are courts provide power legislature was within the constitutional novo, indi- trial district shall be de cated; review, but power given court is district mine.) rather (Emphasis than a trial anew.” Again Republic the case of 94 Mont. Rom v. Coal (2d) 161, testimony before the was introduced board, appeal sought taken to court where leave was the district granted testimony, to which the de to introduce additional objected. objection fendant additional overruled received, so attention was that this court’s there question called very consideration, this now under Compensation court there said: Workmen’s Act makes “The permits board the trier of facts review court, except shown, where, good cause cases evidence is (Em permitted in addition to the record before board.” *22 phasis mine.) Republic 94 22 Sykes Co., 239, the case of v. Coal Mont. (2d) 157, 158,

Pac. court had under this consideration the identi- question being hearing cal now discussed. There was had be- board, testimony appeal taken, introduced, fore addi- testimony hearing in permitted court, tional the district objection. says: over There this court the defendant’s authority exceeded “It is first contended the court in * * * permitting testimony introduced additional to be . 1921 2960, Revised “Section Codes as same [which Code], provides 1935 hearing 2960 of that on such our as * * * good shown, cause this, permit ‘the court but, in introduced, to be evidence absence of additional such * * * the cause shall be heard permission record of the board.’ contemplates merely

“While the statute a review of the record special unless is some there ‘good reason or reception evidence, of additional for the in no cause’ case (Emphasis mine.) de novo’.” ‘trial permits a full speaking right in of the majority opinion, The district introduction of additional permit testimony in court

201 says: af- case, occasions this “On at least two different here.” proceeded exactly firmed the as lower court where it majority opinion cases, Nicholson v. cites as follows: two 270, v. Roundup and Novak 358, Coal 79 257 Pac. Mont. Board, 196, 754, sup Industrial 235 in Accident 73 Mont. Pac. port apparently over majority that statement. have rule, application, looked the which is of universal to the effect light that each in the decision a court must be read precise (State question Malott then under consideration. ex rel. Commissioners, 37, Board 296 1; v. 89 Mont. Pac. State ex rel. Jones, 574, 356, 551; Walker 80 v. Mont. 261 Pac. 60 A. R.L. Virginia, Cohens v. 5 L. Ed. Wheat.

In the Sun River & Land v. case of Stock Co. Montana Trust Bank, & Sav. this court said: “In considering the meaning language and intent of of an opinion one must have constantly mind the facts the case opinion For, which the is written. Chief Justice Marshall impossible observed, it is language general toso use as that ex pressions apply every meaning instance with the same every condition of facts.”

An examination of the decision in the Nicholson Case discloses that Nicholson employ died while Roundup Coal A Company. inquest coroner’s was held for the purpose of inquiring death, into the cause of Nicholson’s a transcript testimony thus taken filed with the board. Nicholson's compensation. widow made claim for The board denied the Appeal claim. district court was had and additional introduced at the before that court. The point, Nicholson Case is not at all. What is said in that case bearing point has no whatsoever now under considera- *23 found, in language tion. There to be used this court Case, neither the Nicholson comfort nor consolation for the majority, (a) because: The holding of board had before it testimony inquest, (b) at the coroner’s taken objec- no made the introduction of testimony tion was additional before question and, therefore, court the district was not con- case at in that all. sidered was not being discussed question now

In the Novak Case by this court considered all, before this and was court at excerpt from following from the all, appears wise or at as con the board “Inasmuch as opinion Novak Case: the law under allowance maximum tends that its award was the therefore, that a disability, admits and, partial permanent for a and the district proper, judgment such maximum is for entitled to Novak is held that review of the order of measure disability, as the full for such the maximum award reversal, is the by this court granted of the relief which * * , the judgment or modification of that affirmance judgment herein us is: Does only question properly before (Em disability f” by law such allowed exceed the maximum phasis mine.) appellant that: “The opinion recites the fact majority judgments on orders and the various

introduced evidence ’’ it defense. which based its technical judgment rendered the district Mention is filed; first and of the second court, grew which out of the claim ‘‘ says: The judgment court, and second rendered the district accompanying by appellant, and the order of offered suffering time recite that was disability, permanent partial and that condition same his judgment. Ap- it on the date of the first the same as was then, by evidence, years pellant, its own admits two court, now more, by this last re- covered alleged be, he spondent’s namely: condition was what That disability at the original continued as it was time of the his (Emphasis mine.) judgment. Strange reasoning! majority opinion continues: “As period subsequent judgment, respondent second to the testi- power, earning his condition fied as cross-ex- by appellant; appellant but offered no amined facts, further recitation opinion After some rebuttal.” presented with the are then situation says: “We where there dispute facts.” substantial no

203 the de- since seems to be that reasoning majority of was none to merits, there upon offered no fendant to our unknown indeed, one hitherto strange offer—a doctrine whether, inquiry pertinent is jurisprudence. passing, the adjudication of quoted, above upon of facts last the statement conclusively is consideration part the claim now under ” “ my C. sub-division shown; that matter is discussed but lower court words, that majority say: “In other if it is at on the completely matter dispose should possible. all East of Dosen v. the case pronouncement is based This 880, 885; what 254 but Min. Butte Dosen rule announced far from the majority say here is say in Case anent this did the Dosen Case; for what this court the law that the court shall was: “The intention of matter far concerned, so as complete justice full and to all do (Em possible the limitations the statute.” be to do so within mine.) phasis pronouncement majority,

The distinction between forth, and the rule laid down this court as above set Case, government Dosen the difference between this constitutes countries, namely, that other ours is a of ours and of some True, government government men. of laws—theirs a (sec. Compensation liberally Workmen’s Act must be construed provides true, that Act as 2964), and also section fol- trial, aforesaid, find from lows: “If the court shall such findings and the board are not in conclusions of accordance they ought law, or the or that with either the facts to be other board, any or that finding or different than those any rule, requirement conclusion, order, or or the board is unreasonable, finding, shall set aside conclusion, such judgment, decree, rule, requirement order, or said or modify justice change the same or as law and shall require, shall and enter finding, shall also make and the court conclusion, required, judgment that shall be or legal shall he order (Emphasis mine.) proper premises.” in the merely parts of the Work cited are But sections last two them constitutes one of Compensation Neither men’s Act. con read and must that Act parts Act.. All whole into sections division together construing it. Its sidered It must ever and reference. merely purposes *25 convenience of Act, to this taken every of kept part be in mind each that clause, sentence, or or section gether, whole; that no forms a the in all of connection with alone, shall but be considered Acci Butte v. Industrial provisions (City the Act. other of of Board Com 75, 130; 156 State Board, 52 Pac. v. dent Mont. Nagel rel. v. ex missioners, 147; Pac. 56 Mont. 185 State 321; (2d) 995, L. 425, 40 99 A. R. Sullivan, 98 Mont. Pac. (2d) 733, 56 105 Estate, In Wilson’s Mont. re A. 367.) L. R. perform imposed upon duty to and refused

The board failed the Thereupon the district court assumed by it the statute. imposed upon board. Since the duty the performance of perform functions the court to does not authorize statute any jurisdiction whatsoever board, the court without therein, except as any judgment or to make order render hereinafter noted. Certainly have district court done?

B. What should the filing board, upon petition, set duty was the all hearing and to afford a concerned that down for done, Had this been much expense, learn facts. order to litigation been avoided. The hav delay, would have board (cid:127) duty, appropriate remedy perform ing failed to Copper (Shugg Anaconda Min. v. mandamus. Loney v. (2d) 435; ex rel. Industrial State Accident

159, 46 Pac. provisions Board, 191, 286 Pac. But under the 87 Mont. opinion special Act, am of the that it I was the court’s the order board and send the cause duty to reverse back set the cause down hearing, with directions to to the matter, to then make having heard the such order and, as provisions because the law warranted —this facts section 2961. majority say, effect, by provisions virtue of finally dis- section was authorized the district court one

pose matter; majority overlook apparently but the provision vital also section, of this to-wit: “and the court shall judgment make and any finding, conclusion, enter order or premises.” shall required, legal proper or shall he (Emphasis mine.) noted,

As herein-above the Act must be construed a whole. require questions C. Consideration now involved that we go my inquire back to subdivision two and further into the proceedings petition had relation to the second filed board; with the of the evidence received at hear- ing; the order made board; to the district court, had; the hearing there adduced; evidence there-at and the rendered. majority opinion, there speaking petition says: of this filed respondent, July 12, “On 1934, respondent filed a pro- under the visions of section Codes, provides, Revised which etc.

After diligent a search of the record before in case, me this I any am justification unable to find True, for that statement. petition filed, was but fact the is that it filed was under the Compensation Workmen’s any Act and not under particular section of Little, that Act. any, if difference it does make if petition the were filed under the quoted, section for section 2956 upon confers power the board no granted which is not under the first clause of section 2952. The last-named provides, section part: “The board shall have continuing over all orders, decisions awards, any at time, upon notice, and opportunity after given heard parties to the in interest, alter, rescind, any or amend such order, decision or by upon award made good cause appearing therefor.” provides: Section 2956 “Nothing contained in the preceding shall, however, section be construed to right limit the of the board, at after the any time date of its award, and from time upon application to time after due notice and the of any party review, interested, diminish, or increase, within the limits any by act, provided this upon awarded the favor such disability person the whose grounds the or termi- diminished award has or was made either increased nated. out of It last-named section was enacted would seem that the gives the board the caution, an for section abundance of provided power within the limits reverse, diminish, or increase upon by grounds the any compensation Act, awarded, award was made person such disability of the whose favor increased, diminished, has either or terminated. must

This in the record. We appear second does not disposing judge by of its contents from order made upon ap- it, and from district of these are peal board. Both contained from order March in the record. The board dated order of the injured reciting August, 1931, respondent after that the appellant again employed in November, while disposition company, filing first petition, petition, July 12, “On continues: claim under first Board petitioned the Industrial Accident Luke Paulich ground that the make further and additional award materially injury very ‘lias increased conditions caused hearing hearing the Board and the since the before totally per- Courts’, and contended that the claimant was (Emphasis mine.) manently disabled.” hearing, setting The order recites the the matter for represented appellant both were fact that respective hearing counsel, says: their and then “The were Dr. L. W. Allard called for the principal witnesses claimant H. the defendant. for the J. Garberson Dr. Allard and Dr. condition he that Paulich’s when examined him claimant testified December 1934 prior just different was examined by was when he Dr. Allard his condition than *27 opinion (the witness) of the his the witness was but * * * per made in 1932 was low. cent too rating thirty found, testified, defendant he for the Dr. H. Garberson J. September 1934 in an examination as he found condition same prior hearing to the before the Board in in his examination ’ ’ Roundup. at instance first

207 found in the facts from The board then draws its conclusions foregoing, the Board language: “In view following was in December does not believe that Luke Paulieh his in 1932 when any greater disability then he suffering was Board. by Industrial Accident originally claim was decided that his expert positive is physician evidence his own exception the doctor makes condition and the same percentage (the doctor) rated at too low is that he the claimant original at the time examination.” application The board denies for “additional and then compensation.” further hearing

Now it will be noted that the time this at was held—at by the time the order was made the board—the was receiving compensation. words, period no other covered by petition allowed under the first and order Clearly expired. had respondent’s board found that condition same as was when the examination under the first filed It was made. is not clear then that by under the facts found the board and virtue of the con- tinuing jurisdiction conferred provi- under the sions 2956, supra, sections it was duty board, under the facts found, to award compensation to the re- spondent ? Under the facts and the law the board had no alter- native. noted,

As above rehearing motion for respond- made by ent denied. Appeal to the district court fol- Findings lowed. of fact and conclusions of law were made September 12, 1935, judgment- and the September rendered findings 1935. In two, number fact the district says: proceedings “The certified record of the before the Industrial Board, together Accident with the additional testimony per- mitted evidence district court fails to show that said claimant, Paulieh, suffering any greater Luke degree disabil- ity resulting the industrial August accidents from he November the time than. suffered first the Industrial Accident Board.” (Emphasis mine.)

208 accordingly judg

The court drew its of law and conclusions entered, respondent nothing ment substance, was the take in that action, appeal It be noted and the was dismissed. will along line that the is the same as finding the district court implies respondent’s clearly the that the condi tion the was the same when the board as it was clearly duty not, then, was first held. it the of the court Was findings to have of the board and rendered set aside the have compensation? judgment awarding But the to referring the order of board made under the majority, to petition, of the district court of second and to the September 13, says: peti 1935, “It be noted that this later is [meaning designated tion have as petition which we number discussing] prior two and which we now was acted are Co., Republic 101 53 in Lunardello v. Coal decision in this (2d) 87, was determined court on December Pac. which Republic 19, 1935, Meznarich v. Coal decision (2d) 82, decided on December 1935. 101 Mont. judgment of perfected from the No district appeal was court. majority opinion correct, in the contained That statement dates, but the decisions those cases relates two far so that. change This court not do That statute. did not legislative department solely to the of the delegated function department government had not made state and the second between time was change in statute last-named cases was rendered the two decision and the filed time -words,the statute the board In other court. this district court time the rendered its de- order and at made its same as it precisely the was when was September, cision in the two last-named cases. decision rendered its court this very question. had before it this court Case Meznarich twenty-six granted for case Meznarich In that again order board.” Later he the further “until weeks compensation, granted which was for additional petitioned declared that “in there board weeks, petitioned Thereafter Meznarich settlement.” final full dismissed The board compensation. for additional rehearing, petition, denied a motion upon the action the district court sustained were without and the district ground that both the board a,ct former order of the board’s reason This court reversed statute. provisions of the because *29 attempting to in the board order of district court because the vesting of the statutes contravention make final in its order question to arose as Then the power in the board. continuing disability statute, “the term in the what meant used is diminished, says: and this court the workman has increased or modification, “Construing of the permits statute which disability has shown that ‘the of the workman ‘award’ when is bar, to the case at or diminished’ in a case similar increased pur- supreme correctly has, think, we stated the of Kansas court continuing jurisdiction, follows: pose granting injury capacity have on to work is ‘What effect an will prediction in necessarily a most cases. The arbitra- matter may lapse not accord with the facts disclosed prediction tor’s beyond may what Capacity increase or decrease of time. adjusted contemplated, ac- award should be Therefore, modification of cordingly. review and the award provided employer are the instance either the or em- for at likely prediction to rest A modified award is still ployee. prove truth, and, prediction if should to be wide of the adjustment ought further to accord with the facts to be made. “ instance, temporary what was believed be disabil- ‘In this * a a ity permanent. been found While in fias one disability constant, it has has remained sense the increased period the end of the it will continue to sense that which years compensation, longer three allows than the statute ® * * being true, last the court predicted. This concludes increased, disability within plaintiff’s meaning has (Corvi Crowe Coal & statute.’ v. J. R. Min. Kan. 1056, 1058.) 244, 237 interpretation given correct opinion,

“In this is the to be our disability grounds person that the phrase ‘upon * * * in whose favor such award has increased’ (sec. though 2956), phrase even be held be a limita tion power modify ‘upon good the board to its award (sec. cause’ 2952), under the rule of liberal construction of the imposed upon Act the court section Revised Codes and is not in conflict with the declaration of this State ex Court, rel. Mulholland v. above, District as the court was dealing there presented case, the situation did not there declare that relief under 2952 and 2956 sections ‘change confined which circumstances’ ‘the law itself ” anticipates.’ That, precisely and the court found what district should, upon in this therefore, case. The petition, granted compensation, second have additional that, refusing should, to do appeal, district court on the compensation. have granted reversed the board and The board then had that order to make and the evidence war- making fact, ranted the of such order. no other order was under warranted evidence. same is true of the district court. *30 put appeal If way:

Let me that an this had been taken to judgment of September this court from the the district court of any question 13, 1935, but is there that the result of that would have been the same as it was in the Meznarich Case? question no Whether, There can be about that. under the evi- dence, the board or court justified either the would have been compensation in making given an order for for period after September, 1935, say, 13th of I am the unable to but up to that time, district power both the board and the court had the just duty each to do Therefore, it was the that. in so far judgment period in this the ease covers up September judgment concerned, 13, -1935, is is a nullity; this because September district court 13, 1935, adjudi- respondent’s rights up I cated to that time. am opinion of justify record here does the conclusion that re- adjudicated spondent’s rights have beyond been that date. Case, supra, this court the Meznarich said:

211 decisions, and findings, regulations orders, rules and “All rea conclusively presumed be be board ‘shall awards or set they modified are and unless lawful, until sonable (See. 2948, Id.) ‘re upon review.’ or aside the board cited, by appeal to two sections view’ mentioned in 1929, chap. Laws (sec. 2959, Id., as amended district 2962, Id.) supreme (Sec. court. 177, and then to 10), see. denying claima decision renders its Therefore the board when dispute, the matter ending compensation and thus for adjudicata conclusive, and res final, becomes order or decision time, appeal within party take an aggrieved failure of the (State question law is on decision whether the and this is so Board, Accident Roundup Min. Co. v. Industrial Coal ex rel. (Shugg (2d) 253), on the merits. v. 386, 23 Pac. 94 Mont. [159], (2d) 100 46 Pac. Copper Co., Mont. Min. Anaconda 435.) ‘final,’ the become case can- board has an order

“After redetermination of the reopened and ’’ for a reconsideration not be disposed of. questions determined 102 56 Murray Hospital, Mont. In the case of Koski v. (2d) court held: “It must remembered Pac. decision or render its make its order board did not payment therein compensa fixed period until after expired. compensation had She Her ceased. had a tion had suffering disability, still and it right to show that she was required in estimating had erred the time the board obvious consequently, limiting compensation. recovery, and, so limiting the order Nevertheless binding ap her have been unless she had final would proposition established pealed. Shugg This case Co., Copper (2d) Min. 100 Mont. Anaconda Pac. v. 435. Republic also, [78], v. Coal (See, Meznarich very properly The court (2d) refused to dismiss the *31 appeal. that complaint the trial Appellants D. erred ad- X-ray of Dr. Porter and letter films. mitting the An ex- phase of the matter merely of discussion a waste tended of time, for, obviously, does violence to of each admission every legal profession. rule The in- of evidence known to the imparted formation letter under oath. contained any appellant, counsel, any Neither kind nor had notice or nature examination physical would be by Porter, anyone X-ray by else, any Dr. or or films appellant words, participate would be taken. In other did not anywise procurement By or all in of this evidence. pursued, appellant right reason denied method many reasons, cross-examination. For these and other both incompetent. the letter and the are Further, films no founda- attempted tion of any kind or nature was to be laid laid imparted the films. All of the introduction of information respondent’s physical the letter films related and the condi- very tion. goes This heart the matter in controversy. imparted by The information Dr. Porter was the expert fact, only testimony offered. that was the intro- given by respondent aside from that duced himself. In passing, may observe, too, it be well to that in this instance the violation redound all of rules of evidence to the benefit of a work- ing man; thing if litigation but this sort is to be done in all had under Compensation the Workmen’s Act, and most of the by employees benefits derived from that Act will soon have dis- appeared ; for it must be borne mind that a two-edged this is sword, employer in the hands become even more employee. destructive than when used I am assuming, course, apply same rule will each ease. My conclusion, therefore, that the herein should reversed, the cause remanded to the district court with direc- tions to send back to board with grant instructions to hearing; and then to make such order as is warranted evidence adduced at consistent with law, but to made, exclude from all prior award Septem- ber 1935. join I opinion in the above by Judge

Mr. Justice Morris: Leiper.

Rehearing 9, May denied 1940.