335 P.2d 853 | Mont. | 1959
This is a proceeding commenced in the district court for mandamus to compel defendants to hold a hearing upon a claim for workmen’s compensation filed by relator. The district court denied relief to relator and dismissed his petition.
This appeal is from the judgment of dismissal.
The admitted facts, appearing of record, are that relator was injured by aeeident in the course of his employment; that his claim for compensation in proper form was timely filed; and that the Board, without holding any hearing, made its findings of fact and order denying the claim on the ground that claimant was a partner of the L and H Timber Company composed of Bryan Kenneth Lovely and Roy Hogenson, and not an employee within the meaning of section 92-411, R.C.M. 1947.
The record discloses that claimant admits he is a partner in the firm. Relator’s claim was submitted through attorney Robert Pantzer, but claimant testified that he was not employed, as his attorney. Mr. Pantzer was furnished with a copy of the order denying the claim on June 25, 1957. Relator had actual notice that his claim had been denied in the latter part of July or the first part of August 1957. He did not apply for a rehearing under section 92-831, nor did he appeal to the district court under section 92-833.
Relator takes the view that he was entitled to a hearing as a.
But defendants contend that the holding of a hearing would be an idle act because it is undisputed that claimant was a partner and defendants contend that as a partner, claimant is not entitled to compensation. This is the general rule. 3 Schneider,
However, there is respectable authority to the contrary. See Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So. (2d) 515; Ohio Drilling Co. v. State Ind. Comm., 86 Okl. 139, 207 Pac. 314, 25 A.L.R. 367; Stephens Produce Co. v. Stephens, Okl. 1958, 332 Pac. (2d) 674, 675; Carle v. Carle Tool & Engineering Co., 36 N. J. Super 36, 114 A. (2d) 738; Felice v. Felice, 34 N. J. Super 388, 112 A. (2d) 581. Absent any controlling decision by this court on the point, claimant has the right to make a record for presentation to the courts where the point may be decided.
We do not rule on the point, but hold that claimant is entitled to a hearing in order to make a record on which the question may be considered as to whether a partner is ever entitled to workmen’s compensation under our statute.
The order appealed from is reversed.