WM. E. SPIETH, CLAIMANT AND RESPONDENT, v. ARTHUR L. STUART, D/B/A BOZEMAN ELECTRIC COMPANY AND GENERAL CASUALTY COMPANY, DEFENDANTS AND APPELLANTS
No. 9524
Supreme Court of Montana
Submitted November 12, 1955. Decided June 27, 1956.
299 Pac. (2d) 106
As applied to the bond which Mr. Swanberg gave on December 29, 1952, this statute means that that bond covered not only the designated term which ran from December 29, 1952, to May 1, 1955, but also any other time beyond that specified during which Mr. Swanberg continued “to discharge any of the duties of or hold the office” in question. It follows that no new bond was required of Mr. Swanberg after May 1, 1955, and that our opinions in the two Stafford Cases directly support the conclusion we reach here.
Other points suggested or argued in the brief of Mr. McChesney‘s counsel have either been disposed of by what we have already written, or because of the view which we have taken of the whole case are now without substantial bearing upon the merits.
Mr. Swanberg is still entitled to the office of chairman of the Industrial Accident Board and entitled to the compensation therefor.
The judgment of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR, and MR. JUSTICES DAVIS and BOTTOMLY, concur.
Mr. Lyman H. Bennett, Jr., Bozeman, for appellants.
Mr. J. H. Morrow, Jr., and Mr. D. A. Nash, Bozeman, for respondent.
Mr. Bennett, Mr. Morrow and Mr. Nash argued orally.
Claimant sustained injuries on July 10, 1952, arising out of
The record before the court was the same as that before the board. No additional evidence was submitted to the court except visual inspection of the thumb. The court, Honorable W. W. Lessley, adopted and affirmed the findings of the board as to the disability being rated as partial and permanent in character and so far as it fixed the compensation at $27.50 per week but changed the duration of those payments for not to exceed 500 weeks. Defendants have appealed from the judgment.
The case presents for consideration the question as to whether the court was right in allowing compensation for a maximum of 500 weeks.
The case is ruled by
In considering this question we keep in mind certain well
What then is the meaning of the limitation “not exceeding the total compensation provided in this act for the total loss of the member causing such partial disability?”
This, as a reading of that section will disclose, depends upon the number of his dependents and their relationship to claimant. The second subject is that of the duration of the payments.
The two sections differ substantially in their provisions for determining the total weekly compensation to be paid.
And
The clause in
The clause having to do with the duration of the payments is found in the last clause of
If this is not the proper interpretation to be placed upon the section as a whole then the last clause would become meaningless.
Here there is no controversy regarding the total weekly award made by both the board and the court. The only controversy is that concerning the duration of the payments. The court properly held that the payments must run for the duration of the disability not exceeding 500 weeks.
Nor does this conclusion conflict with that part of
He may take his choice but cannot recover under both sections. If he proceeds under
We are aware that many courts hold that where the statute allows compensation for certain prescribed, scheduled injuries there can be no award as for partial permanent disability but the claimant is limited to the award for specified injuries.
The cases are collected in 71 C.J., Workmen‘s Compensation, sections 547 and 551, pages 833 and 837. Examination of the cases there cited will disclose that those supporting the text involved statutes different from ours.
Likewise some of the cases reached the conclusion they did because the pleadings were based on the claim for specified injuries and not for partial permanent disability.
There is dictum in the case of Dosen v. East Butte Copper Mining Co., 78 Mont. 579, 254 Pac. 880, that supports the view that claimant sustaining one of the specified injuries may not recover under general provisions of the statute. The precise point was not before the court. What is now
What we have held herein to be the proper interpretation to be placed upon sections
It is said in the Novak case that “The total compensation does not refer to weekly compensation, but to the sum total after computation.”
If total compensation does not mean total weekly compensation but a combination or computation of the weekly award together with the duration of payments, then how could any one compute what the total compensation in a given case would be where the disability continues beyond the 400 weeks under former section 2913?
The court attempted to do so in the Novak case on page 204 of its opinion in 73 Mont., on page 756 of 235 Pac., but it should be noted that the court in making the computation did so in compliance with only a part of the statute. It ignored completely that part of section 2913 which provided for payments after 400 weeks “at the rate of five dollars per week” during the continuance of the disability. The method of computation applied in the Novak case was quoted from with approval in Sullivan v. Anselmo Mining Corp., 82 Mont. 543, 552, 268 Pac. 495, and to that extent the Sullivan case is likewise overruled.
Likewise the court seemed to be swayed in the Novak case by the fact that the compensation under section 2920 which is now
The legislature thought it was sufficient to make the award for specific injuries exactly the same regardless of the severity of the injury and regardless of the particular member of the body involved.
The legislative intent is made plain to allow the payments to be made over a longer period according to its judgment of the importance of the particular member of the body that is lost. Judge Lessley properly ruled that the payments should continue for a period not exceeding 500 weeks.
The record shows that as soon as the industrial accident board made its decision, claimant perfected an appeal to the district court before filing a motion for rehearing. Upon having his attention called to the fact that he was obliged to file a petition for rehearing before he was in a position to appeal, he dismissed his attempted appeal without prejudice and then filed a motion for rehearing. It was after the denial of the motion for rehearing that he again appealed to the district court. Upon the trial in the district court defendants moved to dismiss the appeal, contending that by dismissing the first appeal claimant waived his right to appeal.
As before noted the first attempted appeal was dismissed in order to comply with
The fact that there was no waiver of a second appeal was disclosed by the praecipe for dismissal declaring specifically that the same was made without prejudice. The second appeal having been taken in due time, as here, the same was not barred. 4 C.J.S., Appeal and Error, section 34, page 107.
Defendants further contend that the application for rehear-
The judgment is affirmed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANDERSON and BOTTOMLY, concur.
MR. JUSTICE DAVIS: (concurring in part and dissenting in part).
I agree that Spieth‘s appeal to the district court after the board‘s denial of his petition for rehearing brought his claim before that court and within its jurisdiction. But I do not agree with the disposition which the majority makes of the case upon the merits. I would set aside the judgment of the lower court and affirm the board‘s order.
My dissents in Levo v. General-Shea-Morrison, 128 Mont. 570, 280 Pac. (2d) 1026; Rathbun v. Taber Tank Lines, Inc., 129 Mont. 121, 283 Pac. (2d) 966, and Gaffney v. Industrial Accident Board, 129 Mont. 394, 287 Pac. (2d) 256, give in detail my view of the function of this court upon its review of cases arising under the Workmen‘s Compensation Act. What
First here, of the latter of these cardinal principles: The district court accepted the findings made by the board in this case, as I believe was its plain duty within the rule which I have stated. These findings are supported by substantial evidence. There is no preponderance of that evidence against them. We need then give no further consideration to the facts of Spieth‘s claim. They are established beyond dispute.
From these facts it appears that Spieth has sustained a partial disability permanent in character which is compensable, i.e., he has suffered a “severe crushing injury to the distal phalanx of his right thumb.” Speith is undeniably entitled to compensation accordingly consistent with
Admittedly, amended
Our problem upon this appeal accordingly resolves itself into this: Do the words of these controlling statutes, sections
As I read sections
But this is not all. If it can be said that at some point
As counsel for the appellant rightly notes in his brief, that decision has not heretofore been overruled or modified by this court in any particular, but to the contrary has at least once been cited with approval in Sullivan v. Anselmo Mining Corp., 82 Mont. 543, 552, 553, 268 Pac. 495. The reasoning of the
In these circumstances I see no justification for overruling now Novak v. Industrial Accident Board. I see no point in uprooting thus what has been settled law for something like thirty years heretofore. Particularly I think it wrong on this appeal to deny effect to this precedent, which was the law of Montana at the time Spieth was injured and when first he became entitled to compensation.
To alter in this fashion the obligation of the insurer, which when the Novak case was law bound itself to compensate Spieth for his injury as that law then stood, comes close indeed to an impairment of the obligation of the insurer‘s contract within the meaning of both the State and Federal Constitutions. I do not propose, however, to turn to the principles of constitutional law to justify in any part my disagreement with the majority in this case. I need not reach that far.
More than once heretofore this court has said that if an earlier decision is overruled or substantially modified, the new rule announced will only apply prospectively to cases and contracts which arise thereafter. Such at least should be our holding here, I think, even if otherwise the prevailing opinion were right. See Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 215, 7 Pac. (2d) 919; Continental Supply Co. v. Abell, 95 Mont. 148, 171, 24 Pac. (2d) 133. But I do not hold to the view that it is right under any reading of its text. The two precedents in this court which I have last cited merely furnish additional reasons why I am persuaded the majority is wrong, and their opinion here unsound in its application of the law no less than in their construction of the Compensation Act.