author: PER CURIAM.

text:
    AMERICAN HAND-SEWED SHOE CO., Appellant, v. O’ROURKE, Respondent.
    [No. 1,266.]
    [ Submitted January 25, 1900.
    Decided February 5, 1900.]

      Foreign Corporations — FToneomplianee With Domestic Statutes —Allegations of Complaint.

    Since it is unnecessary for a foreign corporation plaintiff, bringing action on a domestic contract, to allege in. its complaint that it complied with the statutes of the state entitling it to do business therein, the question of its noncompliance therewith can only be raised by answer.

      Appeal from District Court, Silver Bow County/ William Clancy, Judge.

    Action by American Hand-Sewed Shoe Company, a corporation, against John O’Rourke and others, co-partners as A. Ducharme & Co. Judgment for defendant O’Rourke, and plaintiff appeals.
    Reversed.
    Statement of the Case.
    Plaintiff alleges that it is, and was at all times mentioned in the complaint, a corporation organized and existing under and by virtue of the laws of the state of .Rhode Island; that for some time prior to the 1st day of May, 1891, it had a course of dealings upon credit with the said defendants, doing business as co-partners; that on or about said 1st day of May defendant John O’Rourke withdrew from said partnership; that at various times between the said 1st day of May, 1891, and the 21st day of December, 1895, plaintiff sold certain goods to the said partnership upon credit; that a balance of §1,171.67 remains unpaid upon said account, though demand of payment has been made; that plaintiff had no notice or knowledge at any time prior to said 21st day of December of the withdrawal of the said John O’Rourke from said partnership; that during all of the said time from the said 1st day of May, 1894, to the said 21st day of December, 1895, said partnership business was continued at the same place and under the same firm name as before, and that during all of this time defendant John O’Rourke held himself out as a partner in said firm; that plaintiff was induced to sell such goods upon credit in the belief that the defendant John O’Rourke continued as a member of the said firm; and “that all of said goods, wares and merchandise were ordered by the said A. Ducharme & Co., in said Butte City, Montana, and wxere shipped and consigned by plaintiff to the said A. Ducharme & Co. at the said Butte City, Montana.5 ’
    The answer of defendant John O’Rourke admits all of these allegations except that he held himself out as a partner subsequent to the 1st day of May, 1894, and that plaintiff did not have knowledge and notice of his withdrawal.
    Defendants Thomas O’Rourke and A. Ducharme suffered default. The cause was tried as between plaintiff and defendant John O’Rourke. A witness being called on behalf of plaintiff, defendant objected to the introduction of any testimony, and moved for judgment on the pleadings. The objection and motion were by the court sustained, and judgment was entered in favor of said defendant and against the plaintiff for costs. From said judgment, plaintiff appeals,

      Mr. John.II. Shelton, for Appellant.

      Mr. Emmet Callahan and Mr. J. O. Bender, for Respondents.
   PER CURIAM.

— The ground of defendant’s motion for judgment on the pleadings was that it appeared from the face of the complaint that plaintiff was a foreign corporation engaged in business in Silver Bow county, Montana, and had brought this suit to enforce a contract that was void because of plaintiff’s failure to comply with the provisions of the Civil Code of Montana, Division I, Part IY, Title XI, concerning foreign corporations, in that plaintiff had not filed in the office of the secretary of state, or with the county clerk of Silver Bow county, a copy of its charter, or a certificate of consent to be sued in the courts of Montana, and had not designated a person in this state upon whom service of process could be made, etc.

The appellant’s contention brings this case directly within the rule laid down in Zion Co-operative Mercantile Association v. Mayo, 22 Mont. 100, 55 Pac. 915, decided since the appeal herein was filed. The conclusion reached in the Zion Association Case was, generally, that in an action by a foreign corporation to enforce a domestic contract it is unnecessary for the plaintiff corporation to plead in its complaint compliance with the statutes of the state entitling it to do business within the state. Defendant may, by answer, set up plaintiff’s noncompliance with the statutes as a ground upon which the contract is void as to the corporation, and for the purpose of preventing the enforcement of the same in favor of the plaintiff corporation, and thus raise an issue; but without such a pleading on defendant’s part, the question of such noncompliance cannot be raised.

The judgment is reversed, and the cause remanded.

Reversed and remoulded.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE, Respondent, v. McCLELLAN, et al., Appellants.
    [No. 1,479.]
    [Submitted January 9, 1900.
    Decided February 5, 1900.]

      Criminal Law — Defense — Alibi — Burden of Proof— Appeal — Instructions ■— Refusal —■ Witnesses — Cross-Examination — Redirect Examination.

    1. Tbe burden of proof is not shifted by the defense of an alibi, and defendant cannot be convicted if the evidence raises a reasonable doubt of his presence at the time and place where the crime was committed. .
    2. Defendant cannot predicate error on the giving of an instruction which he requested.
    3. An erroneous instruction charging that the defense of an alibi, to be entitled to consideration, must be proved by the defendant, is not cured by a subsequent charge telling the jury to acquit it they had a reasonable doubt of defendant’s presence at the time and place of the commission of the alleged crime, as said charges are irreconcilable and misleading.
    4. "Where the prosecuting witness testified on cross-examination that he had been in jail, he may, on redirect examination, explain the circumstances of his imprisonment.

      5. Where a witness for the state testified that the prosecuting witness had paid out money for drinks in a saloon before the alleged robbery was committed, it was competent on cross-examination to show that the prosecuting witness had spent all his money before the robbery.
    6. There is no error in refusing an instruction in a criminal case which singles out one witness, and directs the jury to consider his condition in particular at the time of the transactions concerning which he testified.
    7. It is not error for the court to refuse a request to charge as to the duty of the jury in their consideration of the testimony of the defendant, where such subject is sufficiently covered by the instructions of the court.

      Appeal from District Court, Ravalli County, Franlc U. Woody, Judge.

    Arthur McClellan and Michael Horeigan were convicted of robbery, and they appeal.
    Beversed.

      Mr. R. Lee McCulloch and Messrs. Crutchfield & Draffen, for Appellants.

      Mr. C. B. Nolan, Attorney General, for the State
    It is never permissible for the defendant, in cross-examining the plaintiff’s witness, to inquire of matters which constitute an affirmative defense. Such a course isopen to the twofold objection that it is not proper cross-examination, and that it reverses the order of proof. Null v. State, 93 Ind. 128; Schmidt v. Schmidt, 47 Minn. 451; Sterling v. Bode, 37 Minn. 29; Wendt v. Chicago, etc. R. Co., 4 S. Dak. 476; Da Lee v. Bladéburn, 11 Kan. 190; Fllemaker v. Budcley, 16 S. & B. (Pa.) 72; McKinley v. McGregor, 3 Whart. (Pa.) 370; Floyd v. Bovard, 6 W. & S. (Pa.) 75.) Besides the rule is well established that while the opportunity of cross-examining the opposing party’s witness is a matter of right, that the latitude allowable in cross-examination is very largely within the discretion of the trial court, and an appellate court will not interfere unless the discretion is oppressively abused. ( Woolfolle v. State, 85 Ga. 69; Brooklyn v. State, 26 Tex. Ct. App. 121; Commonwealths. Lyden, 118 Mass. 452; States. Moy, 33 So. Car. 39; The Pennsylvania Co. s. FFewmeyer, 129 Ind. 401; Birmingham Fire Ins. Go. s. Pulver, 126 Ills. 329; Dunn s. Altman, 50 Mo. App. 231; Bohan s. Avoca Borough, 154 Pa. State, 404.) Even though on a question of alibi the charge of the court contains an objectionable statement of the law, this is no ground for reversal, if the remainder of the charge, or the charge taken as a whole, contains a full and fair exposition of the law. (.People s. Levine, 85 Cal. 39; People s. Farm Pai, 86 Cal. 225; L^eople s. Chung ILeong, 86 Cal. 329; Sheehan s. People, 131 Ills. 22; People v. Pearsall, 50 Mich. 233; People s. Stone, 117 N. Y. 480; State v. Jaynes, 78 N. Car. 504; Com. s. Choate, 105 Mass. 4 51; States. Freeman, 100 N. Car. 429.)
   MR. JUSTICE HUNT

delivered the opinion of the Court.

Defendants appeal from a judgment of conviction of robbery and from an order overruling their motion for a new trial.

On the trial, defendants introduced evidence tending to support an alibi. The court gave the following instruction at the request of the state (No. 13): “The court instructs the jury that the defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place, so far away, or under such circumstances, that he could not, with any ordinary exertion, have reached the place where the crime was committed, so as to have participated in the commission thereof. The burden is upon the defendant to prove this defense;” and then instructed as follows, at the defendants’ request (No. 14): “The court instructs the jury that one of the defenses interposed by defendants in this case is what is known in law as an alibi; that is, that the defendants were at another place at the time of the alleged commission of the crime. If proved, — and all of the evidence bearing upon that point should be carefully considered by the j ury, — or if, in view of all the other evidence, the jury have any reasonable doubt as to whether these defendants were in some other place when the crime is alleged to have been committed, they should give the defendants the benefit of the doubt, and find them not guilty.” “The court instructs the jury that, as regards the defense of an alibi, the defendants are not required to prove it beyond a reasonable doubt to entitle them to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of their presence at the time and place of the commission of the alleged crime. ’5

Defendants insist that the first of these instructions quoted was erroneous in itself, and not cured by the two, or either of them, thereafter given. This contention is sound. Evidence of an alibi is competent under defendant’s plea of not guilty. No special averment need be made to warrant the introduction of testimony in support of it. The state must prove the presence of the defendant as part of the essence of the crime as charged, except, of course, where such presence is unnecessary, but that phase of the law we need only mention. There is no prima facie case without showing the presence of the defendant; therefore defendant may rebut the evidence of the fact of his presence by evidence of the fact that he was not present. Alibi is not a special defense changing the presumption of innocence, or relieving the state of its burden of proving the guilt of the defendant beyond a reasonable doubt. (Bishop’s Cr. Proc. Vol. I, Sec. 1066.) The defendant is not bound to establish it by a preponderance of the evidence. (State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026.) It is true that, when the state has made out a prima Jacie case of guilt, the burden is then upon the defendant to rebut such a showing; but, if he relies upon an alibi, he is not obliged to prove it as an effect by a preponderance of evidence, for he need only rebut the evidence of his presence by such an amount of evidence as will, upon a consideration of the whole case, raise a reasonable doubt of his guilt of the crime for which he is on trial. (Schultz v. Territory (Ariz.) 52 Pac. 352.) It is a necessary sequence of the statement that, when the defendant must be proven guilty by the state beyond a reasonable doubt, if there is a reasonable doubt whether he was present or absent when and where the crime was committed, a reasonable doubt of his guilt has arisen, and acquittal must follow.

The somewhat confused question of how the defense of an alibi relates to the whole case in criminal law simplifies itself when we discard the illogical doctrine that it is an affirmative defense, to be proved by the defendant, and substitute therefor the doctrine, which easily flows from the premises already stated, that it is but one of the many defenses offered in rebuttal of the state’s evidence, carrying with it to the defendant no burden of proof other than the obligation to introduce evidence sufficient to raise a reasonable doubt. This he may do by evidence sufficient to raise a reasonable doubt of his presence at the place where the act was done, and this doubt may arise without its springing from an affirmatively proved fact that he was somewhere else at the time, and could not have committed it. (Section 3101, Code of Civil Procedure; Com. v. Choate, 105 Mass. 451; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; State v. Taylor, 118 Mo. 153, 24 S. W. 449; Peyton v. State, 54 Neb. 188, 74 N. W. 597.)

Subjected to the test of these principles, instruction No. 13 was erroneous. Its effect was to prevent the jury from giving consideration to the defendants’ evidence tending to establish an alibi unless they had carried their burden, and proved the defense, whereas the court ought to have charged that it was the duty of the jury to consider all the evidence before them, including that bearing upon the alibi, and conclude from the whole thereof whether the guilt of the defendants was proven beyond a reasonable doubt. It follows that the burden of proof was not altered by the defense of an alibi. If the defendants’ evidence upon that point raised a reasonable doubt of their guilt, it became the duty of the jury to acquit, even though they were not satisfied that the alibi was clearly established as a fact. (State v. Taylor, supra; Walters v. State, 39 Ohio St. 215; People v. Roberts, 122 Cal. 377, 55 Pac. 137.)

What we have just said pertains in many respects to instruction No. 14, given at defendants’ request; although, were it not for the greater and farther extending ertfor throughout instruction 13, given at the instance of the prosecution, we should not reverse the case for the erroneous principle announced in No. 14, inasmuch as defendants cannot predicate error upon the giving of an instruction requested by themselves. (Territory v. Burgess, 8 Mont. 57, 19 Pac. 558.)

Instruction No. 15 was not consistent with No. 13. The one (No. 13) required the defendants to prove an ahbi and authorized an acquittal on that ground only if the defendants proved the alibi. Evidence only tending to prove it, did not permit the consideration of the alibi as a defense. It was useless to defendants unless they had established the fact. Thus, a reasonable doubt of the presence of the defendants at the commission of the offense charged could not avail them, for they were obliged to prove their absence as a fact in negation of the state’s necessary proof of the fact of presence. No. 15, on the other hand, told the jury to acquit if they had a reasonable doubt of defendants’ presence at the time and place of the commission of the alleged crime. To clearly reconcile these confusing statements is impossible. The supreme court of Iowa, in State v. Maher, 74 Iowa, 77, 37 N. W. 2, has said that substantially similar charges are not necessarily inconsistent or contradictory, resting their opinion upon the difference between a defense and the evidence tending to establish a defense. But the learned court assume, as a matter of course, that, if the alibi is not established by a preponderance of evidence, it is not ,to be considered as proved, and that, unless so proved, it can have no consideration in controlling their finding on the defense of an alibi. With this assumption we cannot agree. In our opinion, too, the argument that a jury would be able to draw the distinction recognized by the Iowa court, at least without special explanation of its possible existence, is strained. The emphasized error in No. 13 cannot well be harmonized with the proposition in No. 15 without overlooking the full applicability of the doctrine of reasonable doubt to the whole case; and for this reason the instructions are misleading.

The discordance between the rule that a reasonable doubt justifies an acquittal, yet that, where defendants rely upon an alibi, they must prove it by a preponderance of evidence, is especially well pointed out by the very strong reasoning of Chief Justice Adams in his dissenting opinion in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5, and by Judge Fuller, dissenting, in State v. Thornton, (S. D.) 73 N. W. 196, 41 L. R. A. 530.

In conclusion, our opinion is that instruction No. 13 was radically wrong, and that the prejudice done by it to the defendants’ rights was not cured by instruction 15, for the two are inharmonious and misleading.

We will briefly notice a few points that are apt to arise on another trial of the case.

The prosecuting witness testified on his cross-examination that he had been in jail in the springtime of the season of the trial. On redirect examination the county attorney asked him to state why he had been in jail. The defendants objected, and the court overruled the objection. The court was clearly correct. Doubtless the purpose of eliciting the fact from the witness that he had been in jail was tó affect the credibility of his testimony, so it became admissible for him to explain the circumstances of his imprisonment.

A witness for the state testified that the prosecuting witness had been drinking with the defendants in a saloon about the time of the alleged robbery'. On cross-examination he testified to the fact that the prosecuting witness was •“treating” other persons, and “paying for the drinks.” The defendants then interrogated the witness with a view of eliciting how much money the prosecuting witness expended in the saloon on the evening of the alleged robbery. The court stopped the examination for the reason that it was not proper cross-examination. We think the court erred in this ruling. The witness having testified to the fact that the prosecuting witness had paid out money for drinks before the alleged crime was committed, it was competent on cross-examination to test the witness’ means of knowledge concerning the money paid out, and to show, if it could be shown, that the prosecuting witness had expended all the money he had before the crime charged was committed.

The defendants asked for an instruction telling the jury that it was their duty to take into consideration £ ‘the condition the witness was in at the time of the transactions concerning which he testifies, as a test of the accurateness of his statements. ’ ’ It was not error to refuse an instruction which singled out one witness, and directed the jury to consider his condition in particular.

The court refused to charge that the jury had no right to disregard the testimony of the defendants merely because they were the defendants, .and stood charged with the commission of a crime; and, furthermore, that the defendants’ testimony should be fairly and impartially considered, together with all the other evidence in the case. There was no error in the refusal of the court to give this instruction, for the court charged that the defendant in a criminal action may testify in his own behalf, and that the jury, in judging of his credibility and the weight to be given his testimony, should take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. There was also a general charge that a witness is presumed to speak the truth; but that this presumption might be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence, and that the jury were the exclusive judges of his credibility. We hold that this was sufficient, and that there was no error in refusing the instruction requested.

Appellants make the point that the evidence is insufficient to sustain the verdict. There was ample evidence to warrant the submission of the case to the j ury.

The judgment and order appealed from are reversed, and the cause remanded, with directions to proceed as herein indicated.

Reversed and remanded.


author: MR. JUSTICE PIGOTT

text:
    STATE, Respondent, v. FISHER, Appellant.
    [No. 1,421.]
    [Submitted January 2, 1900.
    Decided February 7, 1900.]

      Criminal Law — Homicide—Testimony of Accomplice — Corroboration — Instructions—Degrees of Offense — Burden, of Proof- — Oral Instructions■ — Evidence of Good Character— Oral Instructions After Submission — Advising Acquittal— Coercing Agreement of Jury — Compulsion as a Defense.

    1. Where the defendant’s own testimony in itself, and without the aid of the testimony of an alleged accomplice, tends to connect the defendant with the commission of the crime, such testimony is in law a sufficient corroboration of the alleged accomplice.
    2. I\ here the jury might have found from the evidence that an alleged accomplice was not an accomplice, a conviction can be rightly had upon his uncorroborated testimony.
    3. Where the proof of defendant’s guilt is wholly circumstantial, and the evidence warrants a conviction of murder in either first or second degree, it is reversible error for the court to withhold from the consideration of the jury murder of the second degree, and instruct the jury that the defendant “is either guilty of murder in the first degree or he is not guilty at all.”
    4. Under Penal Code, Section 2081, upon a trial for murder, the commission of the homicide by the defendant being proved, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, the crime is presumed to De murder of the second degree, and the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, — if he would reduce the crime to manslaughter, there must be produced evidence sufficient to create a reasonable doubt of the existence of malice.
    5. Since Penal Code, Section 2070, eojnmands the court to charge the jury in writing, and forbids oral comments upon the instructions, unless by agreement of both the state and the accused, mere silence of the accused or his counsels not equivalent to a consent to the giving of oral instructions.
    6. The provisions of Penal Code, Section 2070, requiring written instructions, and forbidding oral comments on the instructions unless by agreement of both the state and the accused, are mandatory, and the violation thereof is reversible error.
    7. Under Penal Code. Section 2070, a charge is oral if not in writing at the time of its delivery and read to the jury as written, — and the; same is true of the information mentioned in Penal Code, Section 2123, and the giving of any such oral instructions or comments on the instructions is prejudicial error, even though they be taken down in short hand by the official stenographic reporter who is required by Code of Civil Procedure, Section 371, “to take full notes of all the proceedings at the trial.”
    8. Where defendant’s affidavit for a continuance stated that certain witnesses, if present, would testify to his good character, and the state admitted the fact that they would so testify, it was a reversible error for the court to charge in writing that good character “if proved by competent evidence” always goes to the defendant’s credit, and when the jury returned for further instructions as to their right to consider his past life, to instruct them orally to the effect that they could consider nothing outside of the testimony given on the witness stand, but that the defendant’s failure to produce the depositions of his witnesses should not prejudice.,-the jury against him, although the charge on the subject when the case was submitted was otherwise correct.

      9. On a trial for murder, it is improper for the court to direct the attention of the jury to the expense incident to-a new trial as the reason why they should reach a verdict.
    10. if a trial judge is of the opinion that the defendant, if convicted, should be granted a new trial because of the insufficiency of the evidence, it is his duty to advise the jury to return a verdict of not guilty.
    11. On a trial for murder, where the jury informed the court that there was no prospect of an agreement on a verdict, it was reversible error for the judge to remark: “Reeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, * * * although I do not care to force any man, against his conscience, to agree to a verdict which he does not believe in. * * * Reeling as I do about the case, * * * I do not feel that I should discharge you,” — since such remark was calculated to impress on the jury that the verdict should be one of guilty.
    12. If the evidence discloses that defendant was commanded to commit the homicide by one who threatened to take defendant’s life if he refused, and, believing the threat would be executed, to save his own life, he killed the deceased, who was, when slain, a mile distant from the place where the threat was made, then defendant is guilty of a deliberate murder.

      Appeal from District Court, Fergus County; Dudley Du Bose, Judge.

    James Eli Fisher was convicted of murder. From a judgment and an order denying a new trial he appeals.
    Reversed.

      Mr. Wm. M. Blackford, Messrs. Stranahan <& Stranahan, Mr. William II. De Witt, and Mr. T. Bailey Lee, for Appellant.

      Mr. C. B. Nolan, Attorney General, for the State.
    With reference to the statements of the court objected to and alleged by the appellant to be oral instructions and se error, we submit that a proper construction of Sec. 371 of the Code of Civil Procedure providing for stenographers who shall take full notes of all the proceedings given or had at the trial, together with the section (1080 Code C. P.) directing that the court shall instruct the jury in writing, make the laws of our state substantially as the California law with reference to oral instructions, that is, permitting them to be given when taken down by the stenographer. (State v. Preston, 38 Pac. Rep., 694.)
    Did it not cease to be an oral charge, if part of the charge at all, when it was taken down by the stenographer ? The court offered to let the jury have the charge written if the defendant’s counsel asked for it, but he sat silent and did not make the request.

      The jury itself dicl not ask for it, therefore its absence was certainly not prejudicial to the defendant and could not have influenced their verdict. (Peoples. Cochran, 61 Cal., 552.)
    It has also been held that a failure to charge in writing, although required by the statute to do so even though it be erroneous, is no ground for reversal where no prejudice could have resulted to the appellant therefrom. (Com. v. Barry, 11 Allen (Mass.) 263; Greathouse v. Summerfield, 25 Ills. App., 296; Walsh v. St. Louis Dr ay age Co., 4 Mo., 339; LLogell v. Lindell, 10 Mo., 484.)
    In Com. v. Barry, Bigelow, C. J., of Massachusetts, said: ‘ ‘It is not the province of the defendant to assert or maintain a rule of law where the omission to observe it has been the cause of no injustice to him.” '
    Besides, in People v. Leary, 39 Pac. Rep., 24, which was a case where the stenographer was not present when the jury returned into court, in a murder case, for further instruction; and consequently cannot be urged to have been decided on account of the permission given under the California statute to instruct the court orally when the same is taken down by the stenographer, the court held that as nothing whatever was said to the jttry except what in substance and more m detail had been told them before in the charge of the court, that there was no violation of the provisions of the California law requiring the charge of the court to be in writing or taken down by the official reporter.
    And at all events “by agreement of both parties” oral instructions can be given. (Section 2070, Penal Code; 11 — A. & E. E. Prac. & Pr., 261.)
    Defendant’s counsel was silent and thereby gave his consent, and as suggested by the trial court in overruling the motion for a new trial, “The day is past in criminal procedure when counsel for the defendant can sit silent and then take advantage of his silence.”
    Silence raises a presumption that consent has been given. (Bouvier’s Law Diet., 1-400; and consensus tollit errorem.)

    There was no coercion of a verdict in this case. The court simply suggested that the case was an expensive one for the county to try, and was not a case where he thought the jury ought to disagree. He was entirely fair, saying that they should either acquit the defendant or find him guilty, and was particularly careful in saying to them, “I don’t care to force any man against his conscience to agree to a verdict which he does not believe in. * * *”• {Harman v. State, 70 Wis., 456; Douglas v. State, 4 Wis., 393; State v. Gorman, 67 Yt. 365.)
    And we submit that the law is well established that the court may urge to the jury as reasons for agreeing on a verdict the time and expense involved in the trial, and the time and expense that a new trial will entail, without it being error. (Allen v. Woodson, 50 Ga., 63; East Tenn. Ry. Co. v. Winters, 85 Tenn., 240; Pierce v. Relifuss, 35 Mich., 53; Kelly v. Emory, 75 Mich., 147; Clinton v. Howa/rd, 42 Conm, 310; Frandson v. Chicago Ry. Co., 36 Iowa, 372; State v. Gorman, 67 Yt., 371; State v. Hormon, 70 Wis., 448.)
    The trial judge is vested with large discretion in the conduct of judicial proceedings, and he may properly admonish the jury as to the desirability and importance of agreeing on a verdict, and may urge them to make every effort to do so consistent with their conscience. (11 — Encyl. PI. and Pr., 304, and cases cited; German Savings Ranh v. Citizens Nadi Ranh, 63 Am. State Rep., 399.)
    It is usually for the interest of both parties, or at least should be; that when a case has been fairly tried and submitted upon the merits to a jury that they should agree. The court, in urging the jury to agree, was but acting in the performance of a highly commendable duty, and an examination of the case of People v. Kindleberger, 100 Cal., 368, on which appellant relies, will demonstrate that there the court held that the “remarks of the judge could not fail to create the impression that he thought the jury ought to convict upon the evidence before them, * * * and that unless it appears that it could not have been so understood we cannot say that the charge was without prejudice to the defendant.”

      In this case, however, the court did not make any remark that could possibly create the impression that he thought the jury ought to convict the defendant, but simply urged them to agree ‘as to the guilt pr innocence of the defendant, ’ ’ and we submit this is not error.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

James Eli Fisher, accused of the murder of one John Allen, and convicted of murder of the first degree, has appealed from the judgment imposing death and from the order denying his motion for a new trial.

That the evidence is not sufficient to sustain the verdict is one of the assignments upon which the defendant asks for a reversal. It is argued that the corroboration of the alleged accomplice, James Calder, was not such as the law requires. Upon this point it is enough to say that there are many items of evidence which in themselves, and without the aid of the testimony of James Calder, tended to connect the defendant with the commission of the crime, — indeed, parts of his own testimony have such tendency; and, secondly, the jury might have found from the evidence that James Calder was not an accomplice in the murder of Allen, in which event a conviction could rightly be had upon the uncorroborated testimony of this witness, who deposed to facts from which the jury might have reasonably deduced every inference necessary to establish the guilt of the defendant.

The court instructed the jury that the defendant “is either guilty of murder in the first degree or is not guilty at all,” and withheld from their consideration murder of the second degree and manslaughter. The evidence tending, to prove that the defendant, with his own hands, killed Allen, is wholly circumstantial or indirect, as defined by, section 3109 of the Code of Civil Procedure: “Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred.” No witness testified that he saw the decedent slain. In this respect the evidence is wholly indirect. James Calder swore that one William Wallace Calder commanded the defendant to go and kill Allen, who was about a mile away from the place where the command was given; that the defendant, carrying a rifle, went in the direction of Allen; that in a few minutes the report of the discharge of a gun was heard; and that when the defendant returned he informed the witness that he had killed Allen, whose dead body was found immediately thereafter, lying in his own blood, with a bullet hole through the skull. The defendant testified that William Wallace Calder said he (William) was going to kilL Allen, that defendant and James Calder a short time afterwards heard the report of a gun, and when William returned he said he had shot and killed Allen. The jury were not bound to believe James Calder. They were at liberty to believe all, a part, or none of his testimony connecting the defendant with the perpetration of the crime. If they did not believe any of it, there was, nevertheless, as the record shows, sufficient evidence remaining to warrant the jury in finding the defendant guilty of murder in either degree. Even if all the testimony of James Calder were accepted as true, still the inference to be drawn therefrom is not necessarily that the murder was deliberate; in other words, the testimony of James Calder, if true, does not require the inference that the murder was deliberate, nor does the law deduce such presumption. What occurred at the time Allen was killed, and the state of the defendant’s mind, were to be found by the jury from the evidence. If all the testimony of James Calder be disregarded, there would be sufficient evidence remaining to warrant a verdict of guilty of murder with or without the element of deliberation. As was said in State v. Calder, ante p. 504, 59 Pac., 904: “Where the proof of guilt on a trial for deliberate murder is to be deduced from circumstantial evidence alone, the court should ordinarily, and perhaps always, charge the jury as to murder of the first and second degrees, and should also charge as to manslaughter whenever there is any evidence tending to negative the presence of malice; for in such cases the circumstances may permit of inferences tending to show the commission of different grades of felonious homicide. If the killing was unlawful only, manslaughter is the crime; add to the element of unlawfulness malice aforethought only, and murder of the second degree is the crime; and, lastly, add deliberation to unlawfulness and malice aforethought, and murder of the first degree is the crime. Even in cases depending for proof of guilt largely or chiefly upon direct evidence, the omission to instruct with respect to murder of the second degree is a dangerous practice, and would in most cases constitute error sufficient to reverse a judgment convicting the defendant of the higher crime; the reason being that the question of fact of whether or not the element of deliberation was present is, save in very exceptional cases, to be determined not by the court, but by the jury.”

Section 2081 of the Penal Code provides: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” In such cases the presumptions to be deduced and the inferences to be drawn depend upon the application of recognized principles of law to the evidence. The state having proved the killing by the defendant without evidence tending to show that the act amounts to manslaughter, or that the defendant is justifiable or excusable, the crime is presumed to be murder of the second degree. If the state would raise the crime to murder of the first degree, the burden is upon it to prove deliberation; on the other hand, if the defendant would reduce the crime to manslaughter, there must be produced evidence sufficient to create a reasonable doubt of the existence of malice. If, from the evidence, the jury believe the killing was unlawful, and with malice aforethought, the deduction is murder of the second degree; if the murder was deliberate, the deduction is of the first degree of that crime; and if they believe that the killing was unlawful, but without malice, the deduction is manslaughter. Where the evidence shows conclusively that the defendant either committed murder or did not do the killing, then the jury ought to find the defendant guilty of murder or acquit him altogether; and the court does not err in so charging. In the case at bar the court should have instructed the jury upon both degrees of murder. There was, however, no evidence, direct or indirect, tending to reduce the felonious homicide to manslaughter; hence an instruction upon that crime was unnecessary.

The present differs from the Colder case in many respects. For example, there was not sufficient evidence, aside from the testimony of the accomplice, who. was an eyewitness of the murder, to sustain a conviction of any grade of homicide; if his testimony was true, the defendant was guilty of deliberate murder, and, upon being sufficiently corroborated, the jury should have so found; if false, he should have been acquitted of any grade of homicide.

The court charged the jury in writing, and they retired to consider of their verdict. On the evening of the same day —March 29, 1899 — the jury returned into court, and the following oral remarks were made by the judge (addressing counsel for the defendant): “Mr. Blackford, if you desire what I say to the jury shall be transcribed by the stenographer afterwards, and taken to them as an instruction, I am perfectly filling to have it done; if you demand it, it will be transcribed;” to which no response was made. Judge (addressing jury): “You can speak through your foreman, gentlemen. The sheriff telephoned me that you desired to see the •oath that you took. What is the object of that, to begin with?” Foreman: “There seems to be some — I won’t say misunderstanding — but there seems to be a doubt in some of their minds whether we have a right to go outside of the evidence in drawing conclusions in this case, — whether we have a right— I hardly know how to express myself.” Judge: “Whether you can consider circumstances not proven in this evidence?” Foreman: “Yes, sir.” Judge: “No. Your oath is, as soon as the jury is completed, and so forth, the following: ‘That they and each of them will well and truly try the matter in issue between the plaintiff and defendant, and a true verdict render according to the evidence. ’ It is your duty, gentlemen, to take the evidence, and view it in the light of the instructions given you by the court; but, if any member of your jury knows anything outside of what has been testified here, he has no right to use that in arriving at his verdict. Is that what you mean, — some ulterior fact ? or do you mean to apply common knowledge to the facts already proven by the testimony ? Of course, in judging the testimony, you must use your common sense, but, for instance, suppose that one of the jurymen knew something which had not been proven against his man (not that I know that there is anything against him; this is only an illustration, gentlemen), and he would use that in saying that he ought to be convicted, or knew something good in favor of him, and therefore said that he ought to be acquitted, that would be going outside of the testimony in arriving at a verdict.” Foreman: “We have no right to consider this man Fisher’s past life? We know nothing of it, and we have no right to draw any conclusions ?” Judge: “No more than as derived from the testimony as the court has given you the charge with regard to the testimony. What weight you shall give that is á question for you gentlemen to decide. In other words, you have no right to consider his past life in considering his testimony, any more than is developed by the testimony at this trial. ” Foreman: “We are to take the evidence as we hear it on the stand? We have no right to consider anything else?” Judge: “No; if you believe that testimony, you have no right to take anything else. You can disregard that testimony, or believe it, as you see fit; it is a question with you. You may disbelieve any witness, but, as the court has instructed you before, the presumption is that the witness is telling the truth always. But you can’t take anything outside of the testimony given before you upon the witness stand. You can believe any part of that testimony, or disbelieve any part of it, with the presumption as the court has instructed you in the former instruction. Now, do you understand, gentlemen, that you are the sole judges of anybody’s testimony that is given upon the stand? and whether you shall believe them or disbelieve them is a question which the court has nothing in the world to do with, and it is left for you twelve gentlemen to decide; and what weight, in that connection with the question that the foreman asked me, that you shall give the affidavit of the defendant as to what certain witnesses will swear to, as the court has instructed you before, is a question for you to decide. You may give it great weight, or give it no weight. The court has nothing to do with it. ’ ’ Foreman: But the fact that the defendant hasn’t these depositions that he speaks of should not prejudice us against him at all ?” Judge: “No.” Foreman: “I think that is all.” Judge: “Well, gentlemen, you can retire. It is a question of the testimony here in the whole case. You should consider the circumstances surrounding everything in this matter, and decide it. The court cannot decide any question of fact, — tell you who you ought to believe, and who you ought not to believe, — because that is strictly your province, and the law says that you must decide it, and not the court. You can retire. ” On the afternoon of the next day the jury again appeared, and the following colloquy occurred: Judge: ‘Gentlemen of the jury, have you agreed upon a verdict?” Foreman: “We have not.” Judge: “Did you desire to see the court, Mr. Foreman?” Foreman: “We wished to make a statement that it is— There is no prospect that we can agree.” Judge: “This is a case, gentlemen, that is an expensive case for the county to try, and it is not a case where I think a jury ought to disagree in. They either ought to find this man guilty of murder in the first degree, or they ought to find him not guilty. Feeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, and put the county to a large expense, although 1 don’t care to force any man against *his conscience to agree to a verdict which he does not believe in. Nevertheless,' if he can be persuaded by talking with his fellow jurors as to the guilt or innocence of this defendant, so that they all may agree, I should much prefer it. Of course, it is no pleasure for me to keep the jury together, nor have I any desire to inflict punishment upon men who are simply doing their duty as citizens of the county; but at the same time it is as much my duty to see that there is a verdict, if possible, in this case,, as it is your duty to conscientiously consider the matter before you. Feeling as I do about the case, as I have stated, I do not feel that I should discharge you. So you can retire, gentlemen, and I will be here at any time if you desire further instructions upon the matter, or you arrive at a verdict. Before you gentlemen retire, is there any question that seems to be bothering you that you desire any further instructions upon as to the law than the court gave you yesterday?” Foreman: “Not that I know of.” Judge: “You can retire, gentlemen.” On March 31st the jury again appeared in court, this time at the request of the judge, who told them that the case was so important that he did not feel justified in discharging them at that time, saying, also, that he desired no juror to be forced to a conclusion except by legitimate argument and discussion. On the same day the jury found the defendant guilty.

None of the remarks made on any of the three occasions were reduced to writing. All were taken in shorthand by the stenographer, but were not extended until after the verdict was returned. The defendant excepted to the action of the court, and assigns error thereon. Subdivision 5 of section 2070 of the Penal Code prescribes that the court must charge the jury as provided in subdivisions 7, 8, and 9 of section 1080 of the Code of Civil Procedure, which declares that the court shall charge the jury in writing. Subdivision 6 of -section 2070, supra, also prescribes that the court must not “in any case make any oral comments to the jury on the instructions, unless by agreement of both parties. All instructions given and refused must be filed among the papers of the case.” Section 1085 of the Code of Civil Procedure, which is applicable to civil cases only, provides that if, after the jury have retired to deliberate, there be a disagreement among them asfto the testimony, or they desire to be informed of any point of law, the information must be given in writing or taken down by the stenographer; whereas section 2123 of the Penal Code provides that such information, when required in a criminal action, must be given in the presence of the county attorney and the defendant and his counsel, omitting the provision contained in section 1085, supra, that the information must be given in writing or taken down by the stenographer, and leaving that matter to be regulated by subdivisions 5 and 6 of section 2070, supra, of the Penal Code. The attorney general contends that the silence of counsel for the defendant when the judge offered to have what he was about to say transcribed thereafter and taken to the jury as an instruction was an agreement or assent to the offer made on March 29th. Not so. From silence assent to a proposed course may often be inferred in fact or presumed in law; but it never should be so inferred or presumed unless the person or party remains silent when he ought to speak. Were it provided that the instructions and the comments thereon may be oral unless the defendant asks that they be reduced to writing, then, manifestly, oral instructions and comments would be proper, if not objected to'because unwritten, and a failure to make seasonable objection would constitute assent, or, rather, would be a waiver of the right to complain thereafter. But by section 2070, supra, the court is commanded to charge the jury in writing, and is forbidden to make oral comments upon the instructions, unless by agreement of both the state and the defendant. This provision requires expression to be given to the assent of the defendant, and his mere silence, or that of his counsel, may not be taken as evidence of the consent. Duty did not demand objection; no legal obligation rested upon the defendant to speak; on the contrary, the court, if it would orally instruct the jury or make oral comment upon the charge already given, was under obligation to secure the consent or agreement of the defendant thereto. The j udge may not create or impose such a duty by saying (in effect) to counsel for the defendant: “L purpose giving oral instructions and making oral comments upon the charge already given. If you desire my remarks to be transcribed hereafter by the stenograper, and taken to the jury, I am perfectly willing to have it done. The statute- forbids oral instructions and prohibits my making any oral comments on the written charge, unless by your consent. Now, if you do not express objection, I shall consider your silence as consent. ’ ’ Consent to an oral charge, or to any modification of or comment thereon, may not be inferred from the silence of the defendant or his counsel. ‘ That such is the rule seems clear; it is supported by many cases, a few of which we cite: People v. Chares, 26 Cal., 78; People v. Kearney, 43 Cal., 384; People v. Prospero, 44 Cal., 186; People v. Hersey, 53 Cal., 574; People v. Bonds, 1 Nev., 33.

Subdivisions 5 and 6 of section 2070, supra, requiring the charge of the court in a criminal action to be in writing, and prohibiting oral comments on instructions unless by agreement of the parties, are mandatory, and a violation of them constitutes error. Did the court either give the jury oral instructions or make oral comments upon the charge, the statements having been taken down in shorthand by the stenographic reporter ? The attorney general insists that when section 371 of the Code of Civil Procedure, which provides that the official stenographer shall take full notes of all the proceedings at the trial, is considered as supplementing sections 2070 and 2123, supra, the statutes of Montana are, in substance, the same as those of California relating to oral instructions, and should be interpreted as are the latter. We do not agree with him, nor with the holding of the supreme court of Idaho upon this question in State v. Preston, 38 Pac., 694. In subdivision 6 of section 1093 of the present Penal Code of California is the following provision: “If the charge be not given in writing, it must be taken down by the phonographic reporter,” which recognizes a distinction between a written charge and one merely taken in shorthand by the stenographer. The charge is oral if not in writing, even though it be taken down by the stenographer. Such oral charge, when so taken down, is permitted by the statute of ■California, but there is no similar statute of Montana. The assertion that a charge not in writing becomes written when phonographically reported as the words fall from the lips of the judge, carries its own refutation. The plain intent of subdivisions 5 and 6 of section 2070, supra, is to require that the charge must be in writing at the time of its delivery, and must be read to the jury as written, thus insuring its preservation as given to the jury; and so, for like reason, with the information mentioned in section 2123. The fallibility of stenographic reporters is probably another reason why the legislative assembly of this state has not as yet provided that the notes of the stenographer may take the place of a written charge. The statute was probably intended also as a means conducive to great care and caution in framing the instructions, — elements not always attending the giving of those which are unwritten.

In the oral instructions and comments by the judge, the court committed error prejudicial to the defendant: Before the trial the defendant had applied for a continuance in order to obtain depositions, setting forth in his'affidavit that certain witnesses, if present, would testify that his general reputation and character for morality was good in the community of his residence, and the state admitted at the trial that the witnesses, if present, would so testify. In the written charge in respect to this matter the law was correctly declared, except in the following clause: “The fact that a man, prior to the alleged commission of a crime, has had a good character, if you believe that he has proven by competent evidence that he has had a good character in the neighborhood in which he lives, always goes to his credit. ’ ’ The court is the j udge of the competency of the evidence, the jury of its weight.. This error may have tended to raise in the minds of the jurors the question of whether the evidence which the state admitted would have been given if the witnesses were present and testifying was competent to prove character. This appears from the question asked by the foreman, the jury desiring to know whether they had the right to consider the defendant’s previous life: “We have no right to consider this man Fisher’s past life? We know nothing of it, and we have no right to draw any conclusions?” “We are to take the evidence as we hear it on the stand? We have no right to consider anything else?” In answering, the judge said: “No. . * * * But you can’t take anything outside of the testimony given before you upon the witness stand. * * * Now, do you understand, gentlemen, that you are the sole judges of anybody’s testimony that is given upon the stand? * * * and what weight, in that connection with the question that the foreman asked me, that you shall give the affidavit of the defendant as to what certain witnesses will swear to, as the court has instructed you before, is a question for you to decide. You may give it great weight, or give it no weight. The court has nothing to do with it.” Foreman: “But the fact that the defendant hasn’t these depositions that he speaks of should not prejudice us against him at all ?” The judge answered, “No.” By these remarks the jury were misdirected. They were bound to accept the affidavit of the defendant as true, it was not to be weighéd by the jury; the affidavit stated that certain witnesses, if present, would testify to good character, and the state admitted such to be the fact. In considering the question of the defendant’s guilt, and as bearing upon it, the weight to be given (not to the affidavit of the defendant, but) to the evidence of good character, was for the jury. When the judge told the jury that they must consider nothing outside of the testimony given before them upon the witness stand, and that the defendant’s failure to produce the depositions of the character witnesses should not prejudice the jury against him, the error was emphasized. True, the written charge, with the exception already pointed out, contained a correct and sufficiently full statement of the law upon the subject, but the oral instructions and comments were repugnant to the charge.

The oral statements of the judge made to the jury on the second day after their retirement contained the following, in answer to the remark of the foreman that there was no prospect of an agreement: £,This is a case, gentlemen, that is an expensive case for the county to try, and it is not a case where the jury ought to disagree in. They either ought to find this man guilty of murder in the first degree, or they ought to find him not guilty. Feeling as I do about the matter, I do not see any reason why a jury should disagree in the matter, and put the county to a large expense, although I don’t care to force any man against his conscience to agree to a verdict which he does not believe in. * * * Feeling as I do about the case, as I have stated, I do not feel that I should discharge you. ” The judge should not have addressed the jury as he did. It was improper for him to direct the attention of the jury to the expense incident to a new trial as a reason why they should reach a verdict. Whether this, of itself, requires a reversal, we do not decide. The more serious error lies in the intimation that the judge believed the defendant guilty. If he believed that the evidence was not of sufficient weight to sustain a verdict, the manifest duty of the court was to advise an acquittal, — in other words, if the judge was of the opinion that the defendant, if convicted, should be granted a new trial because of the insufficiency of the evidence, the jury should have been advised to return a verdict of not guilty. (Section 2096, Penal Code; State v. Welch, 22 Mont., 99, 55 Pac. 927.) If, in the opinion of the judge, the evidence was sufficient to warrant the submission of the case to the jury, the weight of the evidence was not for him to determine. It seems clear, also, that by the impromptu oral charge and comments the jury were given to understand that the judge entertained no doubt of the verdict which ought to be rendered, and the trend of his remarks was certainly calculated to impress the jury that, in his opinion, the verdict should be one of guilty. His opinion upon the weight of the evidence and the guilt of the defendant was not expressed in direct language, but it was implied. We think the correct rule is announced in People v. Kindleberger, 100 Cal., 368, 34 Pac., 853: “When, upon the trial of a defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of the judge to so inform the jury, and to advise a verdict of acquittal. This power is sometimes exercised by courts, and is one so frequently invoked in the trial of criminal cases that its existence may be regarded as a matter of common knowledge upon the part of jurors of ordinary intelligence and experience; and this fact is not to be lost sight of in considering the impression likely to have been made upon the jury by the charge of the judge in this case. To any one knowing that it is the duty of the court to advise an acquittal if the evidence is such that, in the opinion of the judge, twelve honest men would have no right to convict him, the remarks of the judge in this case could not fail to create the impression that he thought the jury ought to convict upon the evidence before them. But it is not necessary that we should be able to say that the jury must have so understood the charge. Unless it appears that it could not have been so understood, we cannot say that the charge was without prejudice to the defendant. The court has no right, except when advising an acquittal, to gire any expression of its opinion as to the weight of evidence, or to tell the jury that the evidence is so clear that they, as honest men, ought not to disagree, which is, in effect, the same as telling them that there is no conflict in the evidence, and that, as honest men, they can render but one verdict. ’ ’

As the cause must be remanded for a new trial, we notice the only other question which is of importance. It is earnestly insisted that there was evidence tending to prove that the defendant was commanded to kill Allen by William Wallace Calder, who threatened to take the life of the defendant if he refused; and that the defendant, believing that Calder would execute his threat, to save his own life killed Allen, who was, when slain, a mile distant from Calder and from the place where the threat was last made. If the evidence disclosed that the defendant killed Allen under these circumstances, then, at the common law, he would have been, and by the statutes of this state he is, guilty of a deliberate murder. (Arp v. State, 97 Ala., 5, 38 Am. St. Rep., 137, 12 South., 301, 19 L. R. A., 357; People v. Repke, 103 Mich., 459, 61 N. W., 861; Regina v. Tyler, 8 Car. & P., 616; section 30, subdivision 8 of the Penal Code.) The instructions touching this phase of the case and kindred matters were, to say the least, as liberal toward the defendant as any that could be given without misdirection in his favor.

The judgment and the order denying the motion for a new trial are reversed, and the cause is remanded.

Reversed and! remanded.


text:
    BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., Appellant, v. MONTANA ORE PURCHASING CO., et al., Respondents.
    [No. 1,461.]
    [Submitted January 18, 1900.
    Decided February 8, 1900.]

      Injunction — Pendente Lite — Discretion of Court.

    It is not an abuse of discretion to deny an application for an injunction pendente lite, where it does not appear that the grievances complained of will work irreparable injury pending the determination of the suit.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. From an order denying an application for an injunction pendente lite, plaintiff appeals.
    Affirmed.

      Messrs. Forbis <& Evans, Mr. Ransom Cooper, and Mr. Willia/m IT. De Witt, for Appellant.

      Messrs. Me Hatton (& Cotter, Messrs. Clayberg, Corbett c% Lee, Mr. Chas. L¿. Leonard, and Mr. JR. JB. Smith, for Respondents.
   PER CURIAM.

— We have examined the record in this case, and carefully considered all the points made by counsel. It involves the right of the plaintiffs to an injunction pendente lite restraining the defendants from passing to and fro through a fractional portion of the Johnstown mining claim, belonging to the plaintiff, by means of underground workings. The lower court heard the application for an injunction pendente lite, and denied it. Plaintiff appeals.

It does not appear that -the grievances complained of will work irreparable inj ury to plaintiff pending the determination of the suit. There was, therefore, no clear abuse of discretion. Order affirmed. Remittitur forthwith.

Affirmed.


text:
    DANFORTH, Respondent, v. LIVINGSTON, Appellant.
    [No. 1,458.]
    [Submitted January 11, 1900.
    Decided February 10, 1900.]

      Tarnation — Assessment— Valuation — Appeal — Presumption.

    l. Since there is no statute allowing an appeal from the action of the county assessor and board of county commissioners, sitting as a board of equalization, in preparing the assessment roll, under Political Code, Sections 3700 et seq., 3780-3785, providing for valuing property for the purpose of taxation in counties where the assessed valuation is less than $8,000,000, courts will not interfere with the action of these officers where it does not appear that the assessor did not act fairly and honestly, or that the board of equalization did not give plaintiff a fair hearing, and where the only ground on which relief is sought is that the valuation of plaintiff’s property was fixed at $14,250, whereas its actual value was admittedly only $9,700.
    ■2. The fact that the assessor fixed the'valuation of property at $14,250, whereas its actual value was Only $9,700, is not, standing alone, such an excess in the valuation as to justify a conclusive presumption of fraud or malice on the part of the assessor.

      Appeal from District Cou/rt, Park County/ Frank Henry, Judge.

    Injunction by James A. Danforth against Alex. Livingston, treasurer and collector of Park county, Montana, to restrain the collection, by sale, of taxes due on real estate belonging to the plaintiff. From a judgment for plaintiff, ■defendant appeals.
    Reversed.
    Statement of the Case.
    Application for an injunction to restrain the collection, by sale, of taxes due for the year 1898 upon real estate belonging to the plaintiff. The complaint, after setting forth the official character of the defendant, substantially alleges the following: That on the first Monday in March, 1898, the plaintiff was, and at all times since has been and still is, the owner of certain lots situated in the town of Livingston, ■county of Park, state of Montana; that the duly elected, qualified and acting assessor of said county, having listed and valued the real estate in said county for the purpose of taxation for the year 1898, entered the same upon the assessment roll thereof; that plaintiff’s property was entered upon said roll, and valued at $11,250; that the assessor thereafter delivered said roll to the county clerk of said county, duly verified as required by law; that thereafter, and during the time provided by law, the board, of county commissioners of said county sat as a board of equalization to equalize the said assessment roll; that on the 28th day of July, 1898, and while said'board was sitting as a board of equalization, the plaintiff, by his duly appointed agent, J. E. Swindlehurst, appeared before said board, and filed an affidavit, setting forth that the full cash value of said real estate, on the first Monday in March, 1898, was the sum of $9,700 only; that the said J. E. Swindlehurst, acting for the plaintiff as aforesaid, then and there asked the said board to reduce the assessment on the said property, as made by the assessor, to its actual cash value; that the full cash value thereof was in fact $9,700, as stated in said affidavit; that the said board refused to allow the request of the plaintiff, and to make any reduction in the assessment whatsoever; that the total levy of taxes of said county for the year 1898, for all purposes, — state, county and municipal, — as fixed by the board of county commissioners, was 33 mills on each dollar of valuation of the taxable property; that this levy included also the property of plaintiff at the valuation fixed by the .assessor as aforesaid; that thereafter the county clerk of said county computed the amount to be paid by this plaintiff as his proportion of the taxes for that year at the sum of $470..25, and thereupon delivered the assessment roll, containing said assessment, to the defendant herein for the purpose of collection; that thereupon the defendant published a notice as required by law, that the taxes for 1898, with costs and penalties added, would be delinquent, if not paid on or before the first Monday in December, 1898; that the plaintiff did not pay the tax so levied against his real estate, and that the same has been declared delinquent; that the said defendant, as treasurer, now threatens to collect the same, with the 10 per cent, penalty and costs added thereto; that on the 22d day of December, 1898, the said defendant, as county treasurer, advertised the plaintiff’s said property for sale, as provided by law in such case, to enforce the collection of the said tax due and delinquent as aforesaid, and will proceed to sell the same, unless restrained from so doing by an order of this court; that on the third day of December, 1898, this plaintiff, by his duly authorized agent, tendered and offered to pay to the defendant, as such county treasurer, the sum of $321, this being the full amount of tax due from the plaintiff upon his said real estate, at its full cash value; that the defendant refused to accept said sum in full payment of the amount due from plaintiff; and that this plaintiff has always been, and still is, ready to pay said sum to the defendant, and now pays the same into court, for the use and benefit of the said treasurer, as the full amount due from him. Judgment is thereupon demanded that the defendant be required to accept the said sum of $321 as full payment of the tax due from plaintiff for the year 1898; and that an injunction issue perpetually restraining defendant from proceeding further with the threatened sale of plaintiff’s property.
    To this complaint a general demurrer was interposed. After argument, the court below, on July 6, 1898, overruled the demurrer, and granted the defendant 30 days from that date in which to file his answer. On the 18th day of J uly thereafter, the defendant having elected to stand upon the demurrer, the court entered judgment in accordance with the prayer of the complaint, directing the defendant to accept the sum of $321 as the full amount due from the plaintiff, and perpetually enjoining him from proceeding further with the sale. From this judgment the defendant has appealed.

      Mr. II. J. Miller, and Mr. C. B. Nolan, Attorney General, for Appellant.

      Messrs. Smith & Wilson, and Mr. A. P. Stark, for Respondent.
    The contention of the appellant’s counsel that the action of the assessor and the board of equalization in the valuation of property is judicial, and cannot therefore be attacked in a collateral proceeding, is a fundamental error. (Constitution, Article VIII, Sec. 1; Hedges v. County Commissioners, 1 Mont. 280; Bardrick v. Dillon (Okl.), 5é Pac. 785; State Auditor v. B. R. Co., 6 Kan. " 507; l'erris v. Iligley, 20 Wall. 375, 22 L. C. B. page 385.) We take it that the remedy by injunction in the case at bar is expressly given by Sec. 1023 of the Political Code of Montana. (Commlrs v. Lang, 8 Kan. 281; Griffith v. Watson, 19 Kan. 23; Stiles v. City of Guthrie, 3 Okl. 26, 11 Pac. 383; Wilson v. Longendyke, 32 Kan. 270; Bardrick v. Dillon (Okl.), 51 Pac. 785.) We believe it is a general rule in all the states and territories having statutes similar to ours, that where property has been assessed for more than its actual value, and the property owner has tendered and offered to pay the tax collector the amount of taxes due upon his property at the legal rate of taxation, upon its true value, courts of equity will enjoin the collection of the excess, provided the taxpayer has applied to the board of equalization for redress and has been refused. (First National Bank of Missoula v. Bailey, 15 Mont. 301; Green Mountain Stock Ranching Co. v. Savage, 15 Mont. 189; N.

      P. By. Co. v. Patterson, 10 Mont. 90; Helton v. The Commercial Na,tl. Bank, 101 U. S. 143, L. Co.op. B. 25, 961; Cummings v. Natl. Bank, 101 U. S. 153, L. Co-op. B. 25, 903; Chicago B. d Q. B. Co. v. Board of Lomm’rs, 39 Pac. 1039 (Kan.); Wallace v. Bullen, 52 Pac. 954 (Okl.); Dakota Loam da Trust Co. v. County of Coddington (S. D.) 68 N. W. 314; Yocum v. Natl. Bank (Ind. Sup.) 43 N. E. 231.)
   PER CURIAM.

— Under the provisions of the statute, the duty of valuing property for the purpose of taxation, in counties of the class to which Park county belongs (those in which the assessed valuation is less than 18,000,000), is confided to the skill and judgment of the assessor, subject, however, to revision, upon proper application, by the board of commissioners of the county, sitting as a board of equalization. (Political Code, Secs. 3700 et seg., 3780-3785; Laws 1897, pp. 195, 196.) The assessor must ascertain the full cash value thereof, and so list it upon the assessment roll, under proper headings. (Political Code, Secs. 3690, 3724. j Thereupon the board of commissioners sit as a board of equalization to revise and correct the roll thus made up, but this board has no power to raise or lower the valuations fixed by the assessor, except as provided in Secs. 3780-3785, supra. There is no provision of the statute allowing any appeal from the action of these officers. It seems clear, therefore, that it w.as the intention of the legislature, acting under the power vested in it by the Constitution (Constitution, Art. XII, Secs. 1, 16, 18), to make their action final, and to deny to the courts the power to review their judgment or to assume supervisory control over their proceedings. Accordingly, under the great weight of authority, courts will ordinarily not interfere with the action of these officers to correct mere errors of judgment. It is only where, they act fraudulently or maliciously, or. the error or mistake is so gross as to be inconsistent with any exercise of honest judgment, that .courts will grant relief. (Cooley on Taxation (2d Ed.) pp, 409, 410; Welty on Assessment, Sec. 137; 2 Desty on Taxation, 65-5; Republic Insur ance Co. v. Pollak, 75 Ill. 294; Porter v. Railroad Co., 76 Ill. 561; Gage v. Evans, 90 Ill. 570; Union Trust Co v. Weber, 96 Ill. 346; San Jose Gas Co. v. January, 57 Cal. 616; Attorney General v. Supervisors, 42 Mich. 72, 3 N. W. 260; Wilmington C. & A. R. Co. v. Board of Com'rs of Brunswick Co., 72 N. C. 10; Wade v. Commissioners, 74 N. C. 81; International & G. N. R. Co. v. Smith Co., 54 Tex. 1; Hamilton v. Rosenblatt, 8 Mo. App. 237.).

In the case under consideration there is no suggestion that the assessor acted otherwise than fairly and honestly, or that the board of equalization did not accord to the plaintiff a full and fair hearing. Neither is there any charge that the valuation put upon plaintiff’s property is disproportionate to the values given to other property in the county of like character and situation. The ground upon which relief is sought, and upon which it was evidently granted by the court below, is the fact that the assessor fixed the valuation of plaintiff’s property at §14,250, whereas its actual value is admittedly only §9,700. Under the authorities cited, this fact, standing alone, is not sufficient to warrant the relief sought. There is not such an excess in the valuation as to justify a conclusive presumption of fraud or malice on the part of the assessing officer. The value of property is a matter of opinion, and there must necessarily be left a wide room for the exercise of this opinion. Absolute accuracy cannot always be attained. Courts cannot be called upon, in every instance, to settle differences of opinion in this regard between the assessing officer and the property owner. Otherwise, courts would be converted into assessing boards, and, in assuming to act as such, would usurp the powers lodged elsewhere by the lawmaking branch of the government.

Counsel for respondent insist that this Court in Cobban v. Hinds, ante p. 338, 59 Pac. 1, impliedly recognized the contention here made by them, that an excess in valuation justifies interference by the courts by injunction to restrain the collection of a tax based thereon. Counsel are in error. The expressions used in that case merely show that the question discussed here was not then before the court for consideration.

The district court should have sustained the demurrer. Let the judgment be reversed, and the cause remanded, with directions to the court below to sustain the demurrer.

Reversed and remanded


text:
    STATE, ex rel. HICKEY, et al., Relators, v. SECOND JUDICIAL DISTRICT COURT, et. al., Defendants.
    [No. 1,497.]
    [Submitted January 19, 1900.
    Decided February 9, 1900.]

      Mandamus to Court- — Dissolution of Injunction — Discretion.
    A mandamus will not issue to compel a court to hear a motion to dissolve or modify an interlocutory injunction granted on order to show cause, based on the discovery of additional evidence tending to establish facts alleged in opposition to the injunction where the motion to modify is based upon the same facts and rests upon the same grounds as those which had been 'presented in opposition to the granting of the injunction, and where the privilege of applying for such dissolution or modification was not reserved in the order granting the injunction; such hearing being in the discretion of the court.
    Application by the state of Montana, on the relation of Edward Hickey and others, for a peremptory writ of mandamus against the district court of the Second Judicial district of the state of Montana, in and for the county of Silver Bow, and the judges of said court, requiring said court and its judges to hear and decide a motion to dissolve an interlocutory injunction.
    Denied.

      Mr. R. B. Smith, Messrs. Mcllatton dc Cotter and Messrs. Clayberg & Corbett, for Relators.

      Mr. T. J. Walsh, for Defendants.
   PER CURIAM.

Mandamus. The relators are the defendants in an action pending in the district court of Silver Bow county, wherein the Washoe Copper Company is the plaintiff, and in which the plaintiff alleges ownership of the Oden lode claim, and the defendants aver their ownership in five-thirty-sixths of the Nipper lode claim, adjoining the Oden on the north. In that action the plaintiff alleges that the defendants, by means of underground workings, had penetrated the boundaries of the Oden lode claim beneath its surface, and were mining and extracting valuable ores therefrom, and, upon the filing of the complaint, obtained an order requiring the defendants to show cause why they should not be restrained from mining within vertical planes drawn downward through the boundary lines of the Oden lode claim, and at the same time obtained a peremptory restraining order. Thereafter, the application for the injunction pendente lite, and order to show cause why it should not be granted, was heard upon affidavits and oral testimony. It was contended by the plaintiff that the vein which defendants were then working passed obliquely out of the Oden lode claim into the Nipper lode claim, through its south side line, at a point about 100 feet west of its southeast corner, and that, pursuing such oblique course, the vein passed out of the north side line of the Nipper lode claim, and that therefore defendants were not entitled to extract ore therefrom beyond the south side line of the Nipper claim; defendants, on the other hand, contended that the vein traversed the Nipper lode claim from east to west, passing through both end lines. The court, upon the evidence adduced, continued in force the restraining order, and directed an injunction pendente lite to issue as prayed for upon the filing of a bond. The. bond was given, and on May 27, 1899, the order of interlocutory injunction was made. Attempted appeals from the restraining order and order of injunction were dismissed by this court in Washoe Copper Co. v. Hickey, ante p. 319, 58 Pac. 866. On November 21, 1899, the defendants filed in that action a motion for a dissolution or modification of the interlocutory injunction, supporting the motion by an affidavit of one Tower to the effect that since the injunction was granted certain development work had been done, which tends to establish the contention which the defendants made on the hearing of the order to show cause. The plaintiff objected to the court’s entering upon a hearing of the defendant’s motion to dissolve in part or modify, upon the ground that the injunction had been granted after notice and a full hearing; the court sustained the objection, and refused to entertain the motion to dissolve. The defendants then applied to this Court for an alternative writ of mandate to compel the district court and its judges to hear and decide the motion to modify the injunction, which alternative writ was issued. Upon the return and answer showing the foregoing facts, the relators ask for a peremptory writ.

It must be denied for the reason that, in the circumstances disclosed, it is not the duty of the court or judge to entertain the motion for a modification. Tiiere was no change in the facts between the time when the hearing was had and the time when the motion to .modify was made,' — that is to say, the latter motion is based upon the same facts and rests upon the same grounds as those which the defendants had theretofore presented in opposition to the granting of the injunction. Neither the defendants’ contention nor their defense is altered; they desire to be again heard because they were now able, as is averred, to produce evidence of the existence of facts which they alleged existed at the original hearing, but had (in the opinion of the district court) then failed to establish. The facts are not different; the defendants have but secured additional evidence tending to prove them. The' court or judge is not required to entertain a motion to dissolve or modify an interlocutory injunction granted upon notice or order to show cause, where the motion is based upon no other grounds or ultimate facts than those already urged in opposition to the order of injunction. This statement is but the enunciation of an elementary doctrine of the law, and is recognized in Section 878, Code of Civil Procedure, as well as in Jones v. Thorne, 80 N. C. 72; Natoma Water Co. v. Clarkin, 14 Cal. 544; Natoma Water Co. v. Parker, 16 Cal. 83; Curtis v. Sutter, 15 Cal. 260; France v. France, 8 N. J. Eq. 619. If the defendants desired the privilege of applying for a dissolution or modification upon the discovery of additional evidence, the right to do so should have been created by and reserved in the order granting the interlocutory injunction.

We do not decide whether the district court or its judge is without jurisdiction to entertain the motion the hearing whereof the defendants ask this court to compel; it is sufficient to say that a hearing cannot successfully be demanded as a right. If the court or its judge is without jurisdiction, the motion cannot rightly be heard; if there is jurisdiction, permission to make the motion may be given or withheld in the discretion of the court or its judge, there being no reservation of the privilege to apply for a dissolution or modification. Here the permission was refused, and this Court cannot properly interfere to compel the granting of leave to apply for a dissolution in part or modification; so it is unnecessary to express any opinion on the question of jurisdiction to hear the application of defendants.

The motion for a peremptory writ is therefore denied, and the proceeding dismissed. Judgment is ordered to be entered accordingly.

Denied.


author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

text:
    ALAN MILENDER, Claimant and Respondent, v. JOHN CARPENTER, d/b/a Rocky Mountain Rodeo, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 87-182.
    Submitted on Briefs Oct. 1. 1987.
    Decided Dec. 31, 1987.
    748 P.2d 932.

      Browning, Kalecyzc, Berry & Hoven, Oliver Goe, Helena, for defendant and appellant.
    Edward A. Cummings, Missoula, for claimant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

State Compensation Insurance Fund appeals an order from the Workers’ Compensation Court awarding claimant $7,146.09 for temporary total benefits, 20 percent penalty on that amount and attorney fees.

We affirm the decision of the Workers’ Compensation Court.

The issues presented for our review are as follows:

1. Did the Workers’ Compensation Court err in awarding temporary total disability benefits from the date of claimant’s injury, when he continued to receive an amount equal to his preinjury salary although not actually working?

2. If entitled to such benefits, is the correct amount properly based on combined temporary total benefits from both of claimant’s employments or solely on his employment with the insured?

3. Did the Workers’ Compensation Court err in awarding a penalty pursuant to Section 39-71-2907, MCA?

4. Did the Workers’ Compensation Court err in holding that claimant was entitled to attorney fees pursuant to Section 39-71-611, MCA?

The uncontested facts are as follows:

Claimant, Alan Milender, was severely injured August 10, 1985, in Superior, Montana, when gored by a bull. Both of Milender’s legs sustained compound fractures, one of which later developed a bone infection. At the time of the injury, claimant was working in a temporary part-time capacity for John Carpenter d/b/a Rocky Mountain Rodeo. His job consisted of tending rodeo stock for approximately two hours a day for two days.

Since 1975, until he was injured, claimant was employed full-time for Sletten Construction Company working as a working construction foreman. At the time of his injury, claimant was earning $600 per week computed at a rate of $15 per hour for a 40 hour work week. Claimant received this amount regardless of actual hours worked.

Milender received weekly Workers’ Compensation temporary total benefits of $28.33 from August 11, 1985, through October 15, 1986, based on his employment with Rocky Mountain Rodeo. From the date of his injury until February 15, 1986, Sletten Construction Company continued to pay claimant $600 per week with usual state and federal tax withholdings. The $600 per week was discontinued on February 15, 1986, because it became evident that claimant would not be able to return to Work in the foreseeable future.

On April 23, 1986, Milender submitted a letter to the State Fund requesting benefits of $293 per week. This would be the amount owed if his Sletten Construction wages were also used in the basis for computing temporary total benefits. State Fund denied his request for an increase on June 18, 1986. On June 26, 1986, claimant was threatened with foreclosure on his home. On October 15, 1986, State Fund agreed to pay $293 per week retroactively from February 15, 1986 and agreed that for the purpose of computing benefits, wages from Sletten Construction would be included in the basis amount.

A hearing was held to determine whether claimant was entitled to $293 per week from August 11, 1985, the date of injury, not just from February 15, 1986, the date Sletten discontinued paying Milender $600 per week.

The hearing examiner concluded, and the Workers’ Compensation judge adopted the judgment that claimant should have received full benefits from August 11, 1986, as well as an award of attorney fees and a 20 percent penalty against State Fund on the amount owed from August 11, 1985, through February 15, 1986. From this judgment, State Fund appeals.

I.

Is Milender entitled to temporary total benefits from the date of his injury even though he continued to receive $600 per week from an employer who is not a party to this lawsuit?

The parties agree that Milender’s wages from two employments, the one at Sletten Construction, and the other for Rocky Mountain Rodeo, should be combined for the purpose of computing the basis of Milender’s benefit rate. The injury suffered while tending rodeo stock made it impossible for Milender to work at either job.

“The general rule is that earnings from concurrent employments may be combined if the employments are sufficiently similar so that a disabling injury at one employment would necessarily disable the employee in respect to the other employment.”

Harmon v. State Comp. Insurance Fund (Mont. 1986), [220 Mont. 445,] 716 P.2d 605, 607, 43 St.Rep. 514, 516.

State Fund has agreed to make payments for the time period after Sletten Construction discontinued giving Milender $600 per week. At issue is a period of six months, between August 11, 1985, and February 15, 1986, when Milender was not able to work due to his injuries. State Fund denies liability for those six months, claiming that Milender does not fall under the definition of temporary total disability during that time.

Section 39-71-116(19), MCA (1985), defining temporary total disability as:

“. . . a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit . . .”
“Wages” are defined in Section 39-71-116(20), MCA (1985), as “[t]he average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week . . .” (Emphasis added.)

In Gee v. Cartwheel Restaurant (1982), 197 Mont. 335, 642 P.2d 1070, this Court held that wages which were received by an employee from one employer while he continued to receive his usual monthly salary from a concurrent employer were “gratuitous wages.” Benefits for disabilities are based on the usual hours of employment of the worker. See LaVe v. School Dist. No. 2 (Mont. 1986), [220 Mont. 52,] 713 P.2d 546, 43 St.Rep. 165.

Likewise, this Court in Gee emphasized that Section 39-71-116(20), MCA (1985), only covered amounts received for usual weekly employment. When no work was performed, amounts received were considered to be gratuitous.

From August 11, 1985, through February 15, 1986, Sletten Construction paid Milender $600 per week for no work done because they hoped that he would return to work for them when he recovered. Sletten’s president testified that Milender was considered a key employee. It was worth $600 per week to the company to have him as an employee when well. On one occasion, Sletten asked Milender to check on a job site near his home. Milender testified that he drove by the job site two times, without getting out of his vehicle, and responded back to Sletten as to the status of the construction project. “Usual hours of employment” does not mean strict adherence to actual work for every hour compensated. Denend v. Bradford Roofing (Mont. 1985), [218 Mont. 505,] 710 P.2d 61, 42 St.Rep. 1778. The Workers’ Compensation Court did not conclude that Milender’s quick drive by a job site two times in a six month period constituted actual performance of his “usual weekly employment.” When the lower court bases its findings and conclusions on conflicting evidence, this Court will not set them aside unless clearly erroneous. It is not our function to determine whether there is substantial credible evidence to support contrary findings. Currey v. 10 Minute Lube (Mont. 1987), [226 Mont. 445,] 736 P.2d 113, 115, 44 St.Rep. 790, 792. We will not disturb this decision.

Sletten’s president testified further that although he considered Milender an employee as long as he was being paid, the payments were in no way intended to be in lieu of Workers’ Compensation benefits. In this case, Sletten is not even responsible for Milender’s benefits. On occasion, when injured Sletten employees were receiving Workers’ Compensation benefits, Sletten continued to pay an amount equal to their wages as a gesture of good will and good business practice.

To adopt the argument of the State Fund in this case would be to grant a benefit to the State Fund at Milender’s expense. Sletten did not intend to benefit State Fund by paying Milender $600 per week for six months. Sletten’s payments were gratuitous and are not a valid reason for reducing Milender’s benefits to $28.33 per week during the six month period.

We hold that the Workers’ Compensation Court did not err by concluding that payments made by Sletten to Milender from August 11, 1985, through February 15, 1986, were not “wages.”

II.

Is the amount of benefits correctly computed from a basis of just Milender’s employment with Rocky Mountain Rodeo, or from a combination of both employments?

Milender’s employment with Sletten Construction was terminated due to injuries sustained while working for Rocky Mountain Rodeo. He was unable to perform duties associated with his position as working foreman. As previously discussed, it is entirely appropriate for purposes of benefits calculation to combine the wages of concurrent employments when both are affected by an injury.

We hold that the Workers’ Compensation Court did not err in calculating Milender’s benefits from August 11, 1985, at a rate of $293 per week.

III.

Was a 20 percent penalty on the amount owed between August 11, 1985, and February 15, 1986, properly awarded?

A penalty pursuant to Section 39-71-2907, MCA, is properly awarded when an insurer unreasonably delays or refuses to pay benefits owed. Withholding or a delay of payment must be unreasonable. Unreasonableness is a question of fact. Paulson v. Bozeman Deaconess Foundation Hospital (Mont. 1984), [207 Mont. 440,] 673 P.2d 1281, 1283, 41 St.Rep. 62, 64. On appeal, a finding of unreasonableness will not be overturned if supported by substantial evidence. Coles v. Seven Eleven Stores (Mont. 1985), [217 Mont. 343,] 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242.

It is not this Court’s job on review to determine whether there was substantial credible evidence to support an opposing position. The State Fund refused to pay Milender any amount above $28.33 per week from August 11, 1985, through October 15, 1986. In October, State Fund agreed to pay Milender the correct amount of $293 per week retroactively only from February 15,1986, not from the date of his injury. This substantially supports the imposition of a penalty.

We affirm the Workers’ Compensation Court on the issue of a 20 percent penalty.

IV.

Is claimant entitled to attorney fees?

Section 39-71-611, MCA, states:

“In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.

State Fund denied liability for Milender’s claim for benefits for the time period between August 11, 1985, and February 15, 1986. The Workers’ Compensation Court and this Court have both “adjudged” that claim compensable.

We affirm the award of reasonable attorney fees.

Affirmed on all issues.

MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent to the affirmance of the award of temporary total benefits for the period from the date of injury to the date of termination of claimant’s employment with Sletten Construction Company, February 15, 1986. Because I believe that award to be in error I also disagree with the affirmance of a twenty percent penalty and attorney fees.

The majority has misinterpreted this Court’s holding in Gee v. Cartwheel Restaurant, supra, by quoting “this Court held that wages which were received by an employee from one employer while he continued to receive his usual monthly salary from a concurrent employer were ‘gratuitous wages.’ ” In that case, this Court reversed the increased award of temporary total benefits and stated:

“Applying even the most liberal statutory construction favoring the claimant, to conclude that his average gross earnings should include wages from this job at which he is no longer employed does not fairly or reasonably represent wages lost from his usual weekly hours of employment. The amount of compensation must bear some reasonable relation to the loss sustained on account of disability.
<<
“In essence, the Workers’ Compensation Court has determined that the claimant is entitled to temporary total disability benefits based upon lost wages for two concurrent jobs, while the evidence in no way establishes that the claimant was actually concurrently employed at the Book Store or had suffered a loss of Book Store wages. To hold that the claimant should receive benefits based upon more weekly hours than he has actually ever worked does not represent compensation based upon his usual weekly hours of employment.” (Emphasis in original.)

Gee, 642 P.2d at 1071, 1072. Claimant Gee was found by this Court to be employed by one employer at the time of his injury, and the claimant here obviously had two employers at the time of his injury.

In my view the issue is whether the employer-employee relationship between Sletten Construction Company and the claimant continued until February 15, 1986 and if it did, did the claimant suffer a total loss of wages to be entitled to benefits based upon two employments under Section 39-71-116(19), MCA (1985).

In this case, the critical evidence regarding the payment of $600 per week by Sletten Construction Company from the date of injury to February 15, 1986, is contained in the depositions of the claimant and Robert Robertson, president of Sletten Construction Company, and this Court is entitled to judge the weight to be given such record testimony.

The evidence in this case is undisputed that Sletten Construction Company had a corporate policy of paying disabled supervisory personnel, such as the claimant, full wages until such time as it was determined that the disabled supervisor would be unable to return to work within a reasonable period of time. The claimant had been a supervisor with Sletten since 1978 and, at the time of the injury on his concurrent two-day job, was paid $600 per week whether he worked no hours a week or sixty hours a week. The testimony is undisputed that Sletten Construction Company paid the claimant his full $600 per week salary, less withholding for federal and state income tax and for Social Security purposes until February 15, 1986 at which time the corporate president made the decision to terminate claimant as an employee. Sletten Construction Company further paid workers’ compensation premiums based upon the salary paid to claimant until February 15, 1986. The claimant attended the company Christmas party in 1985, and readily inspected a bridge construction site on several occasions prior to February 15, 1986, at the request of his employer without claiming additional reimbursement.

In my opinion, for the majority to hold, in effect, that the $600 weekly salary benefits were gratuitous and that the claimant suffered a total loss of wages from Sletten Construction Company from August 10, 1985 until February 15, 1986 is unrealistic and ignores normal corporate business practices and specifically the corporate practice of Sletten Construction Company. See, Larson, Workmen’s Compensation Law, Section 57.42:

“An occasional court will say that such a payment is to be deemed a gratuity, but this, in the absence of special facts indicating a charitable motive, is unrealistic. In fact, in the case of corporate employers, it is doubtful that the management has the right to give away the corporation’s money as gratuities even if it wanted to. As a matter of corporation law, it would have to be assumed that the payment was made in discharge of a legal obligation, if any such actual or potential obligation could be found that would reasonably account for the expenditure.”

The effect of the majority decision is to award the claimant temporary total disability benefits which, combined with the salary received from Sletten Construction Company, result in a post-injury monthly income of $3,572, far in excess of his regular salary of $2,400. This result in my judgment, does not comply with the Gee requirement that “the amount of compensation must bear some reasonable relation to the loss sustained on account of disability.”

I would reverse upon the basis that the award tends to make the Workers’ Compensation system unworkable, and is not in accord with Section 39-71-116(19), MCA (1985) and the previous holdings of this Court.


text:
    APRIL 1987 CALENDAR
    From: The District Court of the First Judicial District, County of Lewis & Clark ,
    STATE OF MONTANA, Plaintiff vs. STEPHEN EUGENE FARRELL, Defendant.
    No. 5030
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 8 years for Theft/Common Scheme imposed on September 11, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Keith Christie of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Robert Boyd, Douglas Harkin, Judges.