190 P. 124 | Mont. | 1920
delivered the opinion of the court.
On March 20, 1916, W. A. Willis, while employed as station-tender for appellant mining company, was shot by Nathan Brooks, mine foreman for said company, and thereafter died. Willis was subject to the provisions of the Workmen’s Compensation Act, and respondent, for herself and her minor child, filed with the Industrial Accident Board her proof of injury and death, and application for compensation. Two separate hearings were had before the board, and on August 30, 1919, award was made in accordance with the application. The company and its insurance carrier appealed to the district court of Silver Bow county, and, after a hearing, the court found in favor of respondent and entered judgment in accordance with the award made by the board. The matter is before us on an appeal from the judgment of the district court.
It was in the district court, and is here, conceded that the death of Willis resulted from an accident or fortuitous event arising in the course of his employment, and the only question presented is: Did the injuries resulting in the death of Willis arise “out of” his employment?
We are asked to try the ease anew and, disregarding the
In In re Weston, 28 Mont. 207, 72 Pac. 512, this court said: “ ‘The source of all power vested in the supreme court is the Constitution of the state, and in it must be found the measure of jurisdiction.’ * * * The power to issue, hear, and determine the six original writs enumerated above marks the limit of the original jurisdiction of this court.” It will be readily seen, therefore, that the legislature was without authority to grant to this court jurisdiction to try the cause “anew” as though the matter was originally before us, and, to the extent that section 22(d) of the Compensation Act attempts to confer such jurisdiction, it is unconstitutional. In the language of the opinion in the Weston Case: “The full measure of the relief which may be granted is a review of the decision of the lower court and a judgment of this court affirming, modifying, or reversing the decision. Further than this we cannot go.”
Section 22 (b) of the Act provides that, on an appeal to .the district court from the judgment of the board, “the trial of the matter shall be de nova [die novo],” but further provides that “upon such trial the court shall determine whether or not
As district courts are courts of original jurisdiction, it was
The district court of Silver Bow county followed the procedure outlined in the Act, and made findings “that the said Industrial Accident Board as far as it proceeded regularly, pursued its authority; that the findings of the said Industrial Accident Board ought to be sustained and that its findings are reasonable under all the circumstances of the ease; that the accident to W. A. Willis, which resulted in his death, arose out of his employment for the Pilot Butte Mining Company, and therefore compensation should be awarded to the widow
Willis was station-tender in appellant company’s mine; Brooks, the night foreman with authority over Willis. Just prior to the shooting, Brooks visited Willis on the 2,600-foot level and communicated to him an order of the day foreman that he (Willis) should remain on shift until relieved. According to Brooks, an altercation arose concerning his action in discharging one Shannon, Willis accusing him of trying to “frame up on” him as, he contended, Brooks had done on Shannon. Brooks then ordered Willis to signal for the cage to be raised to the néxt level that he might make an inspection there. Willis gave some signal and entered the cage with Brooks, which he had a right to do. Whether Willis gave the correct signal which was misunderstood by the engineer, or whether he gave the signal to hoist to the surface, could not be ascertained. The cage continued to the surface, and, on leaving it, the two men immediately met in personal encounter. Who was the aggressor is not entirely clear; nor is the evidence satisfactory as to the cause of the trouble. According to Brooks’ version of the affray, while he gives no satisfactory explanation for the act, “Willis attempted to grab me and get my lamp, which he finally did”; that he then broke away and ran for the office. On the other hand, Willis being advised that he could not live, made the following statement: “Since I am going to die, I want you to know just what happened. We were coming up on the cage together and, as we got off the cage on the surface, Brooks hit me on the jaw with his heavy
The second hearing was held before the board some two years after the death of Willis and after Brooks had stood trial for the killing; while the first hearing was had befoye the trial and while Brooks would wish to make the circumstances as favorable to himself as possible. On this second hearing, Brooks still exhibited considerable heat on account of the fact that he-was taken to the surface when he wanted to go to the next level, as shown by the following excerpt from his testimony: “Q. Do you remember when you first saw him that morning? A. On the 2,600 when I went to make my inspection. Q. And then you both came up on the cage together?” Without further question or suggestion, Brooks answered: “We both came up
The 'board also found that “the conversation about Shannon would naturally be the reply to the giving of this order [to remain on shift until relieved], as there is testimony to show that the men on the shift were more or less irritated at the discharging of some of their fellow-employees, including Shannon, by Mr. Brooks. Some significance is attached to this order by the exclamation of the day foreman, Mr. Little, at the time of the shooting. He seemed to immediately conclude that his order was the cause of it. * * * There is not a particle of evidence to show that there was any personal animosity between Mr. Brooks and Mr. Willis. In fact, all the evidence shows that Mr. Willis was a peaceably inclined man. * * * The irresistible inference is that this fatal quarrel arose from the work or employment in which Willis was engaged.”
The difficulty in this and kindred cases arises from the fact that we must determine a question of fact rather than a 'proposition of law. No clear-cut rule is, or can be, laid down; each case must be decided on its own facts and attendant circumstances and forms no precedent for future decisions. “Previ
In the case of Wiggins v. Industrial Acc. Board, 54 Mont. 335, Ann. Cas. 1918E, 1164, L. R. A. 1918F, 932, 170 Pac. 9, this court laid down a general rule as to what accidents come within' the provisions of the Act, as follows: “Without attempting to formulate a rule which will include every injury within the meaning of this phrase, it is sufficient for the purposes of this appeal to say that if, by reason of the nature of the employment itself or the particular conditions under which the employment is pursued, the workman is exposed to a hazard peculiar to the employment under the circumstances, and injury results by reason of such exposure, then it may be said fairly that the injury arises out of the employment, or, stated in different terms, the workman must have been exposed by his employment to more than the normal risk to which the people of the community generally are subject, in order that his injury can be said to arise out of his employment,” “without reference to * * * fault and altogether irrespective of whether, under existing laws, actions for damages would lie.” (Lewis
In the case of State ex rel. School District v. District Court, 140 Minn. 470, 168 N. W. 555, the supreme court of Minnesota said: “That under some circumstances an injury from an assault is one caused'by accident arising out of the employment is without question; and it is as much without question that under other circumstances it is not. When the nature of the employment is such as naturally to invite assault, or when the employee is exposed to an assault by the character of his work, as when he is protecting or in charge of his employer’s property, and the assault naturally results because of the employment and not because of something unconnected with it, so that it is a hazard or special risk of the work, the eases say that it arises out of the employment.” (The court then summarizes the eases so holding.) “When the assault is unconnected with the employment, is personal to the assailant and the one assaulted, is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, the cases say that the intentional injury does not arise out of the employment [giving illustrative cases].”
Bradbury, in his work on Workmen’s Compensation (Chap. 8, Art. F, “Assaults”), digests many cases of assault, clearly demonstrating that the courts are in practical accord that (1) personal altercations in no way connected with the employee’s duties do not give rise to accident arising out of the employment, but that (2) where the employee is performing work he was employed to perform, and is assaulted because of the work, or of some incident in connection with the work, or his manner of doing it, and receives an injury, it is an accident arising out of his employment.
Section 24(a) of our Compensation Act provides: “Whenever this Act or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court. ’ ’ And in the case of Shea v. North-Butte Min. Co., 55 Mont. 522, 179
Among the illustrative, cases cited by Bradbury, at pages 589, 590, we find the following: “A newspaper reporter was directed by his employer to get the first copy of the newspaper off the press to see if the makeup was correct. He was forcibly resisted by the pressman, the reporter repeatedly and properly attempting to do as he was instructed. When about to report the matter to his superior, the reporter was unexpectedly and without other provocation assaulted. It was held that this was an accidental injury arising out of the employment. (Brown v. Berkeley Daily Gazette, 2 Cal. Ind. Acc. Com. 32, [841].)
“Two workmen had an altercation in which the one who finally committed the assault was the aggressor and the employer observing it, told them they would both be discharged unless they desisted. A little later the workman who had originally been the aggressor approached from behind the other workman and struck him on the head with such force that he' afterward died. It was held that the accident arose out of the employment. (McNiel v. Mountain Ice Co., 38 N. J. L. 109, 11 N. C. C. A. 238.)
“A driver told a fellow-workman in a stable that he was using too much water on a horse, when the workman intentionally sprinkled some water on the driver, who was the claimant. The claimant a moment later spoke to the fellow-workman, who slapped the claimant on the shoulder, and as the claimant turned around a finger of the fellow-workman struck the claimant in the eye, causing injuries by which he lost the sight of the eye. It was held that there was sufficient evidence to sustain a finding that the injury arose out of the employment. (Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, [L. R. A.
In its final order the board says: “It must be remembered that Mr. Brooks was night foreman, having charge of the property and employees of the Pilot Butte mine, at the time of the accident, and that he stands in the position of the employer. What he knew and did was really what the employer knew and did. In support of this view is the case of Kinsel v. North Butte Mining Co., 44 Mont. 445, 120 Pac. 797. Part of the opinion in point on this question is as follows: ‘The evident purpose was to show that Wells was a vice-principal. He was engaged in performing a primary absolute and unassignable duty of the master. * * * This fact in itself takes him out of the category of fellow-servants and makes him a wice-principal. * # * His negligent act was that of the master itself.’ ”
There seems to be some authority for an additional exception to the rule that ordinarily assault cases do not form the basis for an award when there is a difference in rank between the employee assaulted and the assaulting employee. Thus in the case of Metropolitan Redwood Lumber Co. v. Industrial Acc. Commission Board (Cal. App.), 182 Pac. 315, after stating the general rule, the court continues: “A second exception is also noted in the cases cited which arises * * * where the injured employee was the superior in rank to the one causing his injuries, the assault arising out of an attempted exercise of discipline on the part of the superior employee. ” It would seem that, if such a case constitutes an exception to the rule, the converse would also be true, and an exception would exist where, under like conditions, injury resulted to the employee sought to be disciplined.
A ease similar to that just noted is Polar Ice & Fuel Co. v. Mulray (Ind. App.), 119 N. E. 149, where the facts were that Mulray was a bookkeeper charged with the duty of keeping a record of outgoing merchandise and the returns made by the drivers, and collecting for shortage; a driver, being angered
Here the inference might be drawn that the trouble between
Affirmed.