Opinion
No. 6,789.
Submitted June 4, 1931.
Decided June 24, 1931. Rehearing denied July 6, 1931.
Workmen's Compensation — Husband and Wife — When Surviving Husband Beneficiary Under Act — Finding of Industrial Accident Board not Binding on Court — What Matters Improper to be Considered by Board. Workmen's Compensation — When Surviving Husband Entitled to Compensation as Beneficiary of Wife Injured in Employment Covered by Act. 1. A surviving husband incapable of supporting himself, and living with or legally entitled to be supported by the deceased wife at the time of the injury sustained by the latter in an employment covered by the Workmen's Compensation Act and from which injury she died, is a beneficiary under the provisions of the Act. (Sec. 2877, Rev. Codes 1921.) Same — Record on Appeal — When Supreme Court in as Favorable Position to Pass on Merits of Case as Industrial Accident Board and District Court. 2. Where on appeal from an order of the Industrial Accident Board denying compensation claimed due by the applicant under the provisions of the Workmen's Compensation Act, the district court on the same record evidence, affidavits and written report of physicans made to the board, reversed the board's order and allowed compensation, the supreme court on appeal to it by the board, is in as favorable a position as either the board or the district court to pass on the merits of the controversy on the same record presented to it. Same — Industrial Accident Board may not Disregard Uncontroverted Credible Evidence — Where Record Evidence Same as Before Board Its Findings not Binding on Courts. 3. The Industrial Accident Board, as a trier of facts presented to it under the Workmen's Compensation Act, may not disregard uncontroverted credible evidence in making its findings, and neither the district nor the supreme court is bound by the board's findings where the record evidence is the same. Same — Matters Determinable by Industrial Accident Board — What Improper to be Considered. 4. In passing upon the claim for compensation made by a widower because of the accidental death of his wife while employed as a cook by a lumber company operating under the Workmen's Compensation Act, the question for determination by the Industrial
1. Dependency within workmen's compensation acts, see note in 62 A.L.R. 160. Accident Board was whether or not the claimant was dependent on his wife for support, and was living with, or legally entitled to be supported by, her at the time of the accident and for a reasonable time prior thereto, and was not concerned with possible future conditions, such as amelioration or cure of his physical condition by an operation.
Appeal from District Court, Flathead County; C.W. Pomeroy, Judge.
Mr. E.G. Toomey, for Appellant, submitted a brief and argued the cause orally.
Mr. A.L. Hughes, for Respondent, submitted a brief, and argued the cause orally.
While it is true that the question of whether the husband was "legally entitled to be supported by the deceased" is to be determined according to Section 2877, Revised Codes of 1921, as of "the time of her injury," nevertheless the surviving husband or widower must be "incapable of supporting himself" after his wife's death. In other words, if the husband was legally entitled to the support of his wife at the time of her death, he could not qualify as a beneficiary under the Act unless subsequent to her death his incapacity continued. No gratuities are to be paid to a widower as such; compensation is to be awarded only if the widower is in fact unable to support himself in the same manner that he was unable to support himself during his wife's lifetime. This being true, the board was certainly required to consider Kearney's status and condition as of the time of its decision and if it found that Kearney could, by resort to ordinary surgery "be relieved and probably cured by an operation" it would have been a violation of law to award compensation to one who refused to make himself whole. Such a decision by the board would have put a premium on malingering. ( Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 P. 880; American Smelting R. Co. v. Industrial Commission, (Utah) 290 P. 770.)
Section 2877, Revised Codes 1921, defining a "husband" or "widower" or, more strictly, defining the conditions under which a husband or widower may be entitled to claim compensation requires particular notice. The Montana legislature has gone further in limiting the rights of a surviving husband asserting a claim to compensation on the basis of his wife's employment than the legislature of any state brought to our attention. It is not enough that the survivor be a husband or widower. Three conditions are prescribed (1) that the widower shall be incapable of supporting himself (2) that the widower shall have been "living with" his wife during her lifetime or (3) if not living with his wife, "legally entitled to be supported" by her at the time of her injury. There is absolutely no suggestion that dependency in fact, coupled with the other qualifications, shall admit the surviving husband or widower to compensation. In other words, the legislature has declared, in effect, that it is immaterial whether a husband is in fact depending upon his wife for support. He may be depending upon her for support and she may be furnishing him with support at the time of her injury, but this is not enough. The husband must show that at such time he was (1) incapable of supporting himself and (2) legally entitled to the wife's aid. In other words, "he must establish (a) his infirmity (b) his nondesertion of the wife and (c) that he has no separate property. Until he affirmatively shows, in addition to incapacity to support himself, that he has not deserted the wife and that he has no separate property, he has no legal claim to her support.
The ordinary test for dependency is whether the claimant may be said to have relied upon the employee's earnings for support — a question of fact. ( Edwards v. Butte Superior Min. Co., 83 Mont. 122, 270 P. 634.) But even if it had been established that Kearney relied upon and looked to his wife, Maud Kearney, for his support, that would not help him. He would have to show that he relied upon her, because he honestly was unable, with the mental and physical powers he possessed, to support himself. In other words, just as the presence of legal liability to support does not prove dependency ( Parson v. Murphy, 101 Neb. 542, L.R.A. 1918F, 479, 163 N.W. 847; Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72; Sweet v. Sherwood Ice Co., 40 R.I. 203, 100 A. 316), so the presence of dependency in fact does not prove that the dependent is "unable to support himself" or "incapable of supporting himself."
The attorney for claimant, in a petition for a rehearing, objected to the report of Drs. Houston, Conway and Cockrell, on the ground that it was not made in the form of an affidavit, was not under oath and no opportunity of cross-examination was presented respecting it. The proper use of physicians' reports in this class of cases has more than once been the subject of judicial investigation. The decisions, generally, recognize that such reports may not be considered by the board ex parte for such procedure violates the basic concept of due process of law in quasi-judicial investigations. In no case, however, has it been held that constitutional rights were violated where the board, after a hearing, received the report of a physician and submitted such report to the parties involved before proceeding to consider the same as part of the body of evidence before it, as here. The submission of the report to the parties, gives them opportunity to object to its use or to demand cross-examination. The submission of the report supplies confrontation. Where no objection is interposed and no demand for confrontation or cross-examination made in due season, the party so failing to object may not later successfully assert his belated objection. (See Continental Casualty Co. v. Industrial Acc. Com., 195 Cal. 533, 234 P. 317; Emma's Case, 242 Mass. 408, 136 N.E. 125; Holmes v. Communipaw Steel Co., 186 App. Div. 645, 174 N Y Supp. 772; Standard Coal Co. v. State Industrial Com., 139 Okla. 269, 281 P. 966; Merrick Inc. v. Cross, 144 Okla. 40, 289 P. 267.)
On August 19, 1929, Maud J. Kearney, wife of John Kearney, was and for two and one-half months had been in the employ of the Nyack Tie Timber Company as a cook. The company in its logging operations was covered by the Workmen's Compensation Act. On Monday, August 19, 1929, Andrew Nelson, who was in charge for the company, directed Mrs. Kearney to accompany him by autotruck to the city of Kalispell in order to make purchase of some kitchen supplies, which she did. After purchase of such supplies, Nelson, with Mrs. Kearney in the truck, started to Nelson's home to procure some logging equipment. At the intersection of Seventh Street and Eighth Avenue in Kalispell an automobile collided with the truck driven by Nelson, as a result of which Mrs. Kearney sustained injury from which she died on the date of the accident at the Sisters' Hospital in Kalispell, to which she had been taken. At the time she was being paid by the company $3 per day and her board and her husband was living with her.
On August 30, 1929, after her burial, her surviving husband made inquiry of the Industrial Accident Board as to his right to compensation. Later, on October 7, 1929, he made and filed a formal claim for compensation, alleging dependency upon his wife for sppport. On January 13, 1930, the board requested the claimant to submit his proofs by affidavits at a hearing set for February 5, 1930, at Kalispell. The claimant, pursuant to such request, filed eight affidavits in support of his case. The chairman of the board visited Kalispell, received the affidavits, and thereupon named Drs. Houston, Conway, and Cockrell to examine the claimant and report as to his physical condition. They made an examination which was completed by them by February 6, 1930, as shown by their unverified written report signed by B.I. Conway for Drs. Houston, Conway, and Cockrell.
On March 13, 1930, the board rendered decision against the claimant, basing it largely upon the physicians' report above mentioned. The claimant moved the board for a rehearing which was denied on April 12, 1930, and thereupon, on April 23, 1930, appealed to the district court of Flathead county. With the identical record before it, the court, on June 20, 1930, set aside the findings and conclusions of the board and rendered decision that the claimant is entitled to compensation. The case is now before us upon the same record on appeal from the judgment.
But one question is involved necessary to a decision, viz.: Did John Kearney establish by a preponderance of the evidence that at the time of his wife's injury and death he was living with her and depended on her for support or legally entitled to be supported by her and incapable of supporting himself?
A "beneficiary" within the express language of the statute [1, 2] means and includes among others named "a surviving wife or husband." (Sec. 2865, Rev. Codes 1921.) And a "`husband' or `widower' incapable of supporting himself, and living with, or legally entitled to be supported by the deceased at the time of the injury," is among those named as beneficiaries. (Id. 2877.) The language employed in the statute is plain and specific requiring no interpretation. The husband's right to compensation is entirely one of fact, and with the cold record now before us we are in as favorable a position as either the board or the district court to pass on the merits. ( Morgan v. Butte Central Min. Mill. Co., 58 Mont. 633, 194 P. 496.)
We have carefully read and considered all of the evidence in the case, and are of opinion that the claimant established his right to compensation under the law by undisputed evidence. He was shown to have been living with his wife at the time of her death, and because of physical disability incapable of supporting himself, and for nearly a year before and at the time of the accident had been wholly dependent on her earnings for his support, and possessed no property or independent income. A review of the evidence will serve no useful purpose here. It is all in substantiation of the rights of the claimant to compensation under the terms of the statute. The report of Drs. Houston, Conway, and Cockrell as to his physical condition appears to have related to the condition of the claimant long after the death of his wife, viz., in February, 1930. Among other things, it is said in the report that "condition about the rectum and anus cause total disability, but this could be relieved and probably cured by operation." The Industrial Accident Board as a trier of facts presented to it under the Workmen's Compensation [3] Act may not disregard uncontroverted creditable evidence in making its findings, and neither the district court nor this court is bound by the board's findings where the record evidence is the same. ( Goodwin v. Elm Orlu Min. Co., 83 Mont. 152, 269 P. 403.) In the case before us the evidence in support of the claim is made up entirely of uncontradicted affidavits. In our [4] opinion this physicians' report did not warrant the board in denying compensation in view of the prima facie case made. Claimant's right to compensation, according to the statute, is based upon the question as to whether, as a widower, he was capable of supporting himself at the date of his wife's injury and resulting death, as shown by the evidence. The determination to be made is whether he was then incapable of supporting himself and living with, or legally entitled to be supported by, his wife at the time of her injury, within the meaning of the law; the Industrial Accident Board is not concerned with possible future conditions, but rather with the question as to whether or not the claimant was incapable of supporting himself and living with, or legally entitled to be supported by, his wife at the time of the accident and for a reasonable time prior thereto. ( Morgan v. Butte Central Min. Mill Co., supra.) The amount of compensation which he shall be paid is a wholly different matter.
Where, on appeal, it is found by the court that "the findings and conclusions of the board are not in accordance with either the facts or the law, or that they ought to be other or different than those made by the board, or that any finding and conclusion, or any order, rule, or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises." (Sec. 2961, Rev. Codes 1921.)
In our opinion, upon the proof submitted, the court was not in error in overruling the determination made by the Industrial Accident Board, and accordingly the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES FORD, ANGSTMAN and MATTHEWS concur.