author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    In re the CUSTODY OF A.L.S., a minor child.
    No. 87-130.
    Submitted on Briefs Sept. 17, 1987.
    Decided Dec. 3, 1987.
    747 P.2d 192.

      Marble & Seidlitz, Donald R. Marble, Chester, for appellant.
    James D. Elshoff, Helena, for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

J.S., the natural mother of six-year-old A.L.S., appeals an order of the Twelfth Judicial District in and for the County of Hill, State of Montana, which modified a decree of dissolution of marriage so as to give primary custody of the boy to her former husband, A.E.S., who is the boy’s natural father. Various irregularities in the manner by which the District Court received and entertained the father’s motion dictate that the order of modification be vacated and this matter be remanded for further consideration.

On December 6, 1982, a decree of dissolution was entered ending the parties’ marriage of nearly four years. The decree adopted by reference a property settlement agreement, which also established joint custody of the one son. Under this agreement, the mother was to have custody of the boy during the school months, the father was to have custody during the summer months, and they were to alternate custody at holidays. The record fails to disclose how this arrangement worked prior to the summer of 1985.

By 1985 both parents had moved to the state of Washington. In August of that year, presumably during his rightful period of primary custody, the father moved the boy to Eugene, Oregon, without notifying the mother. When the father’s period of custody elapsed and the boy was not returned, the mother filed a felony custodial interference complaint against the father. The father and child were located in Oregon, the mother reassumed custody with the aid of Oregon authorities, and father was extradited to Washington. He was convicted of a felony custodial interference in Washington Superior Court on April 10, 1986. Since his extradition, the father has seen the child only once for two hours in a court-supervised visit during his felony trial.

Mother and child returned in 1986 to the Rocky Boy’s Indian Reservation, where she and the boy are enrolled members of the Chippewa Cree Tribe, the boy’s heritage is calculated by the tribe to be 81/256th part Indian, roughly one-third Indian blood. The father has no Indian ancestry. Mother sought an award of sole custody from the tribal court. The father failed to appear for a hearing. The tribal court ordered that the child should remain in the mother’s custody while it investigated the mother’s charges that the father had abused the boy. Mother and her new husband both found jobs in Havre, Montana, and rented a modern apartment.

The father located the mother in December, 1986. He demanded to see his son for Christmas but the mother refused the request. On December 23, the father filed a motion to modify custody supported by affidavit. The affidavit stated that the father had experienced “numerous and continuous problems” in exercising his visitation rights, that the child was afraid of his mother and her male companions and wished to live with the father, and that the boy’s situation had changed significantly since the original decree because the mother was not caring for the son’s various health problems. He asserts that the boy’s strabismus, a condition in which the eyes do not focus together, is such that it could cost the boy his left eye if not attended to. On the basis of this affidavit, the District Court issued an order on December 24 compelling the mother to appear on January 14, 1987 and show cause why the father should not be granted sole custody.

The father filed a second motion on December 31, 1986, requesting the District Court to hold the mother in contempt of court for refusing to abide by the custody and visitation terms of the 1982 dissolution decree. In his supporting affidavit father said he “knows of no reason other than [mother’s] willful refusal” why he should not be allowed his visitation and custody rights. He did not apprise the court of his felony conviction in Washington for custodial interference. The father suggested that this motion could be considered during the previously scheduled January 14 hearing. On January 7, 1987, the District Court ordered a second hearing be scheduled on January 29, 1987 for mother to show cause why she should not be held in contempt.

The record contains no affidavits of mailing or of service on the court’s two orders. A receipt entered as part of the record shows that father mailed something to the mother on December 24. Mother acknowledges receiving notice of the first hearing in early January. But she could not find an attorney in Havre that would handle her case since father had talked to the attorneys in town. She called the District Judge to tell him that she could not find a lawyer. She apparently misunderstood the judge to say the matter had been continued until January 29. Consequently, she did not appear at the January 14 hearing. The father attended that hearing and testified that since he was concerned about his son’s health and had been refused opportunities to see his son, the decree of custody should be modified in his favor. Again it appears from the transcript that the father did not notify the court of his conviction for custodial interference.

The District Court issued an order on January 15, 1987, granting sole custody to the father with reasonable visitation for the mother. No notice of judgment concerning this order was mailed to the mother.

The order of modification and the contempt proceeding against the mother were stayed until February 23, 1987. Mother appeared with counsel at that hearing. The court refused to consider counsel’s motion to dismiss father’s petition, but considered the hearing to be one to set aside the court’s order of modification. Mother and her new husband testified that the boy was attending school on the reservation and was being attended to by physicians and psychologists. They testified that they were working and were providing an adequate home and were not currently on welfare. The father admitted in questioning that he had been convicted of custodial interference, that he and a daughter by another union were currently on welfare, and that he had no job at that time.

On March 4, 1987, the District Court modified its January 15 decree so that the father has custody of the boy during the school months and the mother has custody during the summer months. Beyond that, mother’s motion was denied. Counsel for the mother applied for a stay of this new order on March 6, 1987. He argued that the mother is providing a suitable home for the child, that the child is in school in Rocky Boy’s, that the father had not been able to provide the court with a home address, and that to change the child’s custody while the matter was being appealed would not be in the child’s best interest. The court denied that application without providing any reasons. The tribal court then took temporary custody of the child. He remains at the reservation.

Counsel for the mother requests that this Court reverse the District Court and reinstate the custody decree of December 6, 1982. Counsel urges that the District Court’s actions were irreparably flawed since the father’s affidavit was insufficient to order a hearing to consider modification. He argues further that the court erred by not affording the mother an opportunity to file responding affidavits before ordering the hearing. He argues lastly that the District Court abused its discretion by not providing a new trial in the matter even though it was shown proper grounds for a new trial.

This Court’s standard of review on custody matters is a very stringent one. Because the District Court considers all the evidence in such matters firsthand and enjoys the opportunity to observe the witnesses all reasonable presumptions as to the correctness of the District Court’s determination will be made. In re the Marriage of Robbins (Mont. 1985), [219 Mont. 130,] 711 P.2d 1347, 1350, 42 St.Rep. 1897, 1900, citing In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 1112; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d 1309, 1311. The District Court’s findings will not be disturbed unless there is a mistake of law or a finding not supported by credible evidence and so clearly erroneous as to constitute a clear abuse of discretion. Marriage of Robbins, 711 P.2d at 1350.

It is apparent in this matter that the District Court disregarded certain statutory and jurisdictional prerequisites that must be satisfied before modification of custody can be considered. The first such lapse concerns the service of process. Section 40-4-220, MCA, provides that a motion for modification shall be made by affidavit and that the adverse party shall be given notice of the proceeding and be allowed to file opposing affidavits. Once opposing affidavits are filed, or no opposing affidavit is filed within a reasonable amount of time, the court may act. Its discretion, however, is limited by Section 40-4-220(1), MCA, which says in part:

“The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.” (Emphasis added.)

This language restates the law’s preference for continuity of custody. See In re the Marriage of Perry (Mont. 1984), [213 Mont. 479,] 691 P.2d 1384, 1386, 41 St.Rep. 2269, 2271. Proper notice must be served to the adverse party so that that party has an opportunity to respond. Leonard v. Hoppins (1948), 121 Mont. 275, 279, 191 P.2d 990, 991-92. The rule is a very practical one. If the District Court permitted show cause hearings for anything less than the most compelling evidence, after having reviewed affidavits of both parties, there could result such a merry-go-round of custody litigation that the litigants’ rights never would be finally adjudicated. Leonard, 191 P.2d at 992.

In the instant case there is no proof that the mother received notification either of the father’s custody petition or the show cause order until early January 1987. Father says he mailed the order on December 24, 1986 but he offers us no affidavit of mailing. All he can offer is the receipt for a certified letter mailed December 24, 1986, and received January 2, 1987, but that receipt does not prove that the notice of the show cause hearing was enclosed. But more importantly the notice of show cause hearing should not have issued less than 24 hours after father filed his motion since mother was not afforded a chance to respond via affidavit. The language of Section 40-4-220, MCA, is plain. A motion to modify custody is to be viewed cautiously by the court. Only after the adverse party has filed an opposing affidavit, or has failed to do so within a reasonable amount of time, may the court act. And then it must deny the motion unless there is adequate cause for a hearing. Mother did not receive the benefit of these requirements.

The District Court ordered a show cause hearing without the benefit of all the facts since mother had no opportunity to file an affidavit with the court. The father’s affidavit does not show that he had been convicted of custodial interference, it does not state that he was on welfare, and it falsely claims that the mother was on welfare and not interested in getting a job when mother was indeed working. Such blatant discrepancies in the affidavit will not support the action in any ensuing show cause hearing.

The effect of the March 4 order was to reverse the original order of custody giving the father, not the mother, custody during the school year and the mother, not the father custody during the summer. This attempt at swapping custody schedules under the guise of the modification statute is improper. In re the Marriage of Paradis (Mont. 1984), [213 Mont. 177,] 689 P.2d 1263, 1264-65, 41 St.Rep. 2041, 2043. Section 40-4-224(3), MCA, states that a joint custody arrangement, which we consider here, may be modified under Section 40-4-219, MCA, only to terminate the custodial rights of one of the parents. Marriage of Paradis, 689 P.2d at 1264-65.

The court also erred when it refused to vacate the January 14 proceedings. Sections 25-11-102 and 25-11-103, MCA, establish three bases for ordering a new trial in a bench trial. Those are irregularity of proceedings, surprise or accident, and newly discovered evidence. On the basis of irregular proceedings alone, this case should have been retried.

Lastly, both the mother and the father request an award of attorney’s fees on this appeal. Section 40-4-110, MCA, speaks to the applicability of attorney’s fees:

“The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

This Court is in no position to determine if either party deserves attorney’s fees. We do not have specific findings before us on the parties’ respective financial resources. Where there is substantial evidence that one party’s resources are far greater than the other’s, the District Court, in its discretion, may award attorney’s fees. In re the Marriage of Wilson (Mont. 1985), [216 Mont. 392,] 701 P.2d 1372, 1377, 42 St.Rep. 894, 900. The question of attorney’s fees would be properly directed to the District Court.

We vacate the court’s orders of January 15 and March 4, 1987. We remand the case to the District Court to allow the mother to file an affidavit in response to the father’s motions of December, 1986 and for further consideration of father’s motions in light of that affidavit.

Vacated and remanded.

MR. JUSTICES WEBER, GULBRANDSON and HUNT concur.

MR. JUSTICE SHEEHY,

specially concurring:

I concur in the result here, but I caution that this case appears to be one for a tribal court.


source: Caselaw Access Project

author:
MR. JUSTICE GULBRANDSON
      MR. JUSTICE SHEEHY,

license: Public Domain

text:
    KENNETH REIL, Claimant and Respondent, v. BILLINGS PROCESSORS, INC., Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 87-157.
    Submitted on Briefs Aug. 6, 1987.
    Decided Dec. 3, 1987.
    Rehearing Denied Jan. 5, 1987.
    746 P.2d 617.
    James M. Scheier, Agency Legal Services, Nancy Butler, State Comp. Ins., Helena, for defendant and appellant.
    Lloyd Hartford, Billings, for claimant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State Compensation Insurance Fund appeals a Workers’ Compensation Court judgment finding Kenneth Reil to be entitled to temporary total disability benefits and medical benefits. The Workers’ Compensation Court found that Mr. Reil had suffered a compensable injury arising out of and in the scope of his employment and that he had given his employer sufficient notice of the injury pursuant to Section 39-71-603, MCA. We reverse the decision of the Workers’ Compensation Court on the notice issue and remand with directions to dismiss the case.

Ken Reil suffers a congenital deformity in the radioulnar joints of his arms. At age fourteen, Reil underwent four surgeries in an attempt to correct these deformities. The deformities cause Reil a considerable amount of pain in his hands, wrists and elbows. The pain has bothered Reil for years and his condition continues to worsen over time.

Reil underwent two later surgeries in 1980 and 1981 for an injury to his left wrist suffered in an industrial accident while employed with a Billings meat packing plant. Reil received a $25,000 settlement of his workers’ compensation benefits for the February 1980 injury. Thereafter, Reil continued to experience pain both as a result of the 1980 accident and his congenital deformities.

After the 1980 accident, Reil’s doctor advised him to avoid heavy work. Pursuant to the doctor’s suggestions, Reil enrolled in a computer program training course of instruction at Eastern Montana College. Reil quit school after one academic quarter to take a job as a computer operator with Yellowstone Processors of Billings. At his initial job interview, Reil informed Yellowstone Processors of his congenital deformities and progressive pain. Yellowstone Processors was the predecessor company of Billings Processors.

Reil’s initial position with Yellowstone Processors, and later with Billings Processors, required that he load and unload computer tape reels from a computer. Sometime in 1982, Yellowstone Processors transferred Reil to a data storage position. Reil’s responsibilities in data storage were to pick-up and deliver client computer tapes, stack boxes of computer tapes, catalogue tapes, and file tapes. Reil worked with Yellowstone in data storage until the spring of 1984 when he was laid-off. Reil experienced pain in his arms throughout his tenure with Yellowstone Processors.

Reil next ran a high pressure power spray washer for a company called High Plains Power Wash. Operating the high pressure washer caused Reil pain in his elbows and wrists. Reil returned to Billings to work for Carey Data as a computer tape cataloger after one month with High Plains Power Wash. Reil experienced pain in his elbows and wrists while lifting twenty to thirty pound boxes of computer tapes for Carey Data. In August of 1984, while with Carey Data, Reil began a second job as a computer operator with Billings Processors. With the exception of one person, the personnel and management at Billings Processors were the same people Reil had worked with at Yellowstone Processors. After a month of holding down two jobs, Reil’s position with Carey Data was discontinued.

Reil loaded and unloaded one-pound computer tape reels, lifted twenty to thirty pound boxes to waist level, and typed for Billings Processors. Reil also performed light janitorial work on his own initiative. All of these activities caused Reil varying degrees of pain and discomfort. During slower work periods, Reil was allowed to watch a television he stored in a false ceiling above his desk. In addition, Reil played basketball with his supervisors and fellow employees on a weekly basis and went hunting in the fall. Lifting the television, playing basketball, and hunting also caused Reil pain in his arms as did most activities utilizing his arms or hands.

Reil occasionally complained to his employers that his arms and wrists hurt. However, Reil did not relate to his employers that this pain was as a result of his work related duties. Reil’s employers assumed that his problems were merely the consequences of the congenital deformities. Reil did not ask to be reassigned to another position nor did he request that his employers modify his duties to reduce the necessity for use of his arms and hands.

Reil’s congenital arm problems progressively worsened from August to December of 1985. On January 7, 1986, Reil’s doctor advised him that he would have to undergo more surgeries to his left and right wrists on January 20, and March 24, 1986, respectively. These surgeries were to remove prosthetic devices that had been previously implanted into Reil’s arms. At Reil’s request, Billings Processors laid him off the job so that he could undergo surgery and collect unemployment compensation during convalescence. Reil’s last day on the job with Billings Processors was January 16, 1986. Thereafter, Reil received six months of unemployment benefits and did not return to work for Billings Processors.

On July 11, 1986, more than five months after leaving Billings Processors, Reil filed a claim for compensation with the Division of Workers’ Compensation. The State Insurance Fund denied compensation on the grounds that Reil failed to give his employer sufficient notice pursuant to Section 39-71-603, MCA, and he had not suffered a compensable injury as defined by Section 39-71-119(1), MCA. The Workers’ Compensation Court heard the matter and found that Reil suffered a compensable injury for which Billings Processors had sufficient actual knowledge. The State Compensation Insurance Fund appeals and raises the following issues:

(1) Did the claimant fail to comply with the notice requirement of Section 39-71-603, MCA?

(2) Is there insufficient evidence to establish that the claimant suffered a compensable injury under the Workers’ Compensation Act?

On cross-appeal, Reil asserts the following issues:

(1) Whether the Workers’ Compensation Court’s failure to impose the 20% penalty against the insurer for its refusal to pay compensation and medical benefits is justified where substantial evidence of record fails to demonstrate the existence of a bona fide controversy?

(2) Whether the Workers’ Compensation Court erred when it ordered the insurer and claimant to apply accrued compensation benefits to repay the Unemployment Insurance Division the unemployment benefits claimant received during the period in question where Section 39-71-743, MCA, prohibits said funds being used to reduce such debts?

(3) Whether the appellant’s appeal is frivolous and therefore subject to the penalties set forth in Rule 32, M.R.App.P.?

We find the State Insurance Fund’s first issue to be dispositive of this appeal. The Workers’ Compensation Court considered certain facts cumulatively and interpreted Section 39-71-603, MCA, to impute constructive knowledge of an injury to the employer, Billings Processors. The appropriate standard of review in this matter, therefore, is to determine whether the lower court’s interpretation of the law, as applied to the particular facts of this case, is correct. Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 912, 42 St.Rep. 388, 391. Accordingly, we are free to examine the lower court’s legal analysis and draw our own conclusions. Wassberg, supra.

This Court consistently stresses the importance of employee compliance with the sixty day notice provision of Montana’s workers’ compensation laws. Masters v. Davis Logging (Mont. 1987), [228 Mont. 441,] 743 P.2d 104, 44 St.Rep. 1664; Hunt v. Sherwin Williams Co. (Mont. 1981), [_Mont._,] 624 P.2d 489, 38 St.Rep. 358. Under Section 39-71-603, MCA, notice of an industrial accident is “mandatory and compliance with [the requirements of the statute] are indispensable to [maintaining] a claim for compensation . . .” Dean v. Anaconda Co. (1959), 135 Mont. 13, 16, 335 P.2d 854, 856. Section 39-71-603, MCA, provides the following:

“No claim to recover benefits under the Workers’ Compensation Act, for injuries not resulting in death, may be considered compensable unless, within 60 days after the occurrence of the accident which is claimed to have caused the injury, notice of time and place where the accident occurred and the nature of the injury is given to the employer or the employer’s insurer by the injured employee or someone on the employee’s behalf. Actual knowledge of the accident and injury on the part of the employer or the employer’s managing agent or superintendent in charge of the work upon which the injured employee was engaged at the time of the injury is equivalent to notice.”

It is undisputed that Reil did not give his employer written notice of a work related injury. The Workers’ Compensation Court found, however, that Billings Processors had sufficient actual knowledge to satisfy the statute. We disagree with the lower court’s application of the facts to the law of this case.

The Workers’ Compensation Court made the following findings of fact relevant to the issue of notice:

“28. Claimant states that he notified his employers that he was having pain in his arms and he was going to see his doctor on January 7, 1986.
“29. After finding out he needed surgery, claimant asked his employers if he could be laid off so that he could draw unemployment while he had his surgery.
“30. Claimant’s initial request to be laid off was refused, but within a matter of a few days (possibly the next day) the decision was made to grant claimant his request and he was laid off.
“31. Claimant states that he asked his employer if he would be able to return to work after his surgery and that he was told he could not come back until he was able to handle all of the duties of his job.
“32. John Smatla, who was Vice-President of Billings Processors at the time of claimant’s employment, testified that he knew of claimant’s congenital problems, prior to claimant coming to work for Billings Processors, but that claimant never told him that the difficulties he was having with his arms were a result of his job duties. Mr. Smatla also testified that claimant’s termination was voluntary, and that claimant wanted to leave because he wasn’t getting enough hours, that he wanted to go to school and that he wanted to look for a better job.
“33. Richard DeLanty, who was Vice-President of Operations at Billings Processors during claimant’s employment, testified that he knew of claimant’s congenital difficulties prior to claimant’s employment with Billings Processors. In January of 1986, claimant told Mr. DeLanty that he was having problems with his arms and constant pain in one arm and that he needed to have surgery done. Mr. De-Lanty stated that claimant never told him that claimant’s arm problems were related to his work, but he did know claimant had problems.
“34. Gale Behm was claimant’s supervisor during claimant’s employment with Billings Processors. Mr. Behm and claimant are cousins and have known each other since childhood. Mr. Behm stated that the “sole reason” claimant wanted to be laid off was to have surgery on his arms. Mr. Behm knew of claimant’s congenital problem, knew claimant was having constant pain and wanted to have surgery, but denied any knowledge that claimant’s problems might be connected with work.
“35. Claimant’s last day of work for Billings Processors was January 16, 1986, a Thursday. Claimant filed for unemployment the next day and had surgery performed on Monday, January 20, 1986. Claimant received his full six months of unemployment, the State finding that his post-operative disability occurred after his layoff. Claimant has not worked since January 16, 1986. Claimant filed a claim for compensation on July 11, 1986.
“36. Claimant testified that he never told his employers at Billings Processors that he had suffered an on-the-job injury, but that he did tell them that he suffered pain from some of his duties.”

The Workers’ Compensation Court found that “[t]he employer knew of the preexisting condition, knew claimant was having problems, knew claimant had to stop work to have surgery for his problem, and knew claimant’s work was aggravating claimant’s symptoms” and concluded that this was sufficient actual knowledge of an injury under Section 39-71-603, MCA. All but the. last finding are supported by the record of this case.

When deposed and questioned by counsel for the State Insurance Fund, Reil testified as follows regarding the issue of notice:

“Q: Now, did you ever tell either Dick Delanty or John Smatla or Gale Behm that you had a work related injury or series of injuries?
“A: No, I didn’t.”

When questioned about the information he provided on his initial compensation claim form, Reil went on to testify as follows:

“Q: The second line up from the bottom [in the block entitled Accident Information] is: ‘Did you notify your employer of the accident?’ It says, ‘Yes.’ ‘Who did you notify?’ It says, ‘Dick Delanty.’ ‘How?’ ‘Told him of problems caused by work.’ Now is that true?
“A: Well, really just kind of in a sense. I really never came right out and told Dick that I was having problems due to the job. I said, ‘But I’m having a lot of problems with my arms lifting and carrying things, and I don’t know what’s causing it so that’s why I went and saw the doctor.’ As far as being specific and notifying him of an accident, no, I didn’t.
“Q: So correct me if I’m wrong, but Dick knew that you had — were suffering pain and had some problems, but what you are saying is he didn’t have any way of knowing if that was work related or you didn’t tell him if that was work related.
“A: I didn’t tell him it was work related, no.”

In addition, the transcript of the Workers’ Compensation hearing reveals the following exchange between Reil and his attorney:

“Q: Did you tell [your employer] that it was the functions of your job, the physical requirements of your job, that caused this pain?
“A: No, I didn’t. I told them that I was having a lot of problems with my arms and that, when I lifted or carried something that they would bother me quite a bit and I wanted to go to the doctor.” After a short recess, and when questioned by the State Insurance Fund’s attorney, Reil changed his testimony as reflected by the following:
“Q: Okay. Now you didn’t ever tell any of your supervisors at Billings Processors that you had suffered an on-the-job injury, did you?
“A: No.
“Q: Did you ever tell your supervisors at Billings Processors that your job duties were causing pain or discomfort in your arms?
“A: Yes, I did. I mentioned to them a few times that when I lifted or carried things that it would cause pain. It was just kind of a — it wasn’t the topic of conversation but I had mentioned it to them quite a few times.”

When confronted with his prior inconsistent statements, Reil was asked whether he was now telling the court something different, to which he answered:

“A: No, it is not anything different. I told Dick Delanty that I was having pain because I was lifting and carrying things and that’s all I told him. I mean I didn’t come right out and say that my job is causing these pains, or causing my problems, but I am having a lot of pain lifting and carrying things and I left it at that.
“Q: So you told him you were having a lot of pain because of lifting and carrying things. If you didn’t specify that it was because of the job duties, for all he knew it could have been because of something you were doing at home, is that right?
“A: Well, yes, but my job entailed lifting and carrying things, so I guess I more or less assumed that he knew that.
“Q: But you never told him that the pain was being caused by lifting and carrying things at the job, is that what you are saying now?
“A: Yes, I guess in a sense. I told him I was having pain due to lifting and carrying things and I pretty much just left it at that.”

Reil’s supervisors and fellow employees consistently told the same story: Reil did not mention that his job duties caused him pain. Reil’s testimony on the subject is, at best, inconsistent. The lower court recognized and resolved these inconsistencies in Reil’s favor by concluding that they “were caused ... by the artful phrasing of questions . . .” Regardless of how the witnesses’ answers were solicited, the facts of this case do not support a finding that Billings Processors had sufficient actual knowledge of an injury pursuant to Section 39-71-603, MCA.

The lower court correctly recognized that “[a]ctual knowledge of the accident or injury, while equivalent of notice, must be more than simple knowledge that the claimant is ill, or that claimant is injured.” See Dean v. Anaconda Co. (1959), 135 Mont. 13, 16, 335 P.2d 854, 856; State ex rel. Magelo v. Industrial Accident Board (1936), 102 Mont. 455, 464, 59 P.2d 785, 789. The most that Billings Processors can be said to have known in this case is that Kenneth Reil had congenital problems and these problems often caused him pain. Simple knowledge on the part of Billings Processors that Reil was experiencing pain does not satisfy the actual knowledge requirement of Section 39-71-603, MCA.

“The purpose of the notice requirement or actual knowledge in lieu thereof is to enable the employer to protect himself by prompt investigation of the claimed accident. . .” Bender v. Roundup Mining Co. (1960), 138 Mont. 306, 313, 356 P.2d 469, 473. In the instant case, the notice or actual knowledge requirement serves the additional purpose of enabling the employer to reassign an employee with a congenital defect to another position or modify his duties to reduce the necessity for use of his arms and hands.

Reil’s employers were aware that he suffered a congenital defect. They were also aware that Reil lifted a heavy television for his own entertainment while at work, played basketball, and hunted. It was incumbent upon Reil, therefore, to specifically advise Billings Processors that it was his job-related duties that exacerbated these congenital problems. As stated by Larson in his treatise on workers’ compensation law:

“As a matter of common sense, the fact that claimant is known to have a preexisting occupational weakness increases the burden on the claimant to show that the employer’s knowledge of the particular manifestation of injury should be taken as knowledge that it was work-connected ... [IJt is not reasonable to expect an employer to launch an investigation every time a foreman hears someone complain of pain or sees someone get a bump, and such knowledge does not therefore satisfy the objectives of the notice statute.” (Emphasis added.)

3 Larson, Workmans’ Compensation Law, Section 78.31(a), p. 15-113 (1983). Reil off-handedly related to his employers that he was experiencing problems. To hold that this is sufficient actual knowledge of an injury would thwart the purposes of the statute. There is no substantial evidence to support the lower court’s decision on the notice issue.

The Workers’ Compensation Court also erred in considering the cumulative effect of the facts in this particular case. “Actual knowledge of an accident and injury . . .” or, as alleged in this case, actual knowledge of a job-induced aggravation of a preexisting condition, “on the part of . . . the employer’s managing agent or superintendent . . .” can be imputed as notice to the employer. Section 39-71-603, MCA; Maki v. Anaconda Copper Co. (1930) 87 Mont. 314, 322, 287 P. 170, 173. The Workers’ Compensation Court imputed constructive knowledge of an injury to the employer, Billings Processors, on the basis of facts “considered cumulatively.” However, in construing Section 2933, R.C.M. (1947), the predecessor statute to Section 39-71-603, MCA, we recognized that “[i]t is clear from these provisions that any kind of knowledge, other than actual, or firsthand knowledge, would be insufficient, for the statutory equivalent of information required to be given in the notice is actual knowledge.” Maki, 87 Mont. at 323, 287 P. at 173 (citing Smith v. Industrial Acc. Com. (Cal. 1917), 162 P. 636, 637). Accordingly, constructive knowledge imputed to the employer on the basis of facts taken cumulatively is insufficient to meet the requirements of Section 39-71-603, MCA, under the particular circumstances of this case.

Reil also argues that his injury is “latent” and the sixty-day notice requirement should be tolled until such time as he realized the alleged compensable nature of his pain. To support this argument, Reil relies on our decision in Bowerman v. Employment Security Commission (Mont. 1983), [207 Mont. 314,] 673 P.2d 476, 40 St.Rep. 2062. In Bowerman we held that the one-year notice of claim limitation of Section 39-71-601, MCA, “does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable nature of his latent injury.” Bowerman, 673 P.2d at 479, 40 St.Rep. at 2065. The basis of our holding in Bowerman was a 1973 legislative addition to Section 39-71-601, MCA, whereby “[t]he division may, upon reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.” Section 39-71-601(2), MCA. Bowerman, however, does not apply to Section 39-71-603, MCA, for the simple reason that the legislature did not amend this statute to allow for waiver of the sixty-day notice of injury requirement. Compare Sections 39-71-601 and -603, MCA. We also note with approval that the lower court found with regard to Reil’s latent injury argument that “simple ignorance of compensability, absent any evidence of estoppel by the employer or medical disinformation [is insufficient] to toll the notice requirement.”

Constructive knowledge is not enough to satisfy the requirements of Section 39-71-603, MCA. An employer, or its managing agent or supervisor, must have actual knowledge of the accident and injury. The fact that Billings Processors knew Reil was experiencing pain, either taken alone or cumulatively with the other facts of this case, does not constitute actual knowledge. Accordingly, the lower court erred in finding that Billings Processors had actual knowledge of Reil’s alleged injury. We find that Billings Processors had no actual knowledge of either an injury or a job-induced aggravation of a preexisting condition in this case. Because of this finding we do not address the other issues presented on this appeal. The decision of the Workers’ Compensation Court is reversed with directions to dismiss the case.

Reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and HARRISON concur.

MR. JUSTICE SHEEHY,

dissenting:

The statement of the majority that “Billings Processors had no actual knowledge of either an injury or a job-induced aggravation of a preexisting condition in this case,” is not founded on fact in the record, and is expressly adverse to the findings of the Workers’ Compensation Court.

The findings of the Workers’ Compensation judge include the following:

“Fourth, claimant testified that he told his supervisors that his work was causing him problems. Admittedly, there are some inconsistencies in claimant’s testimony. There are conflicts between claimant’s testimony and the testimony of the employers’ representatives. However, the inconsistencies and conflicts are caused more by the artful phrasing of questions rather than by claimant’s or his supervisors response. Claimant, may, indeed, have never been so specific as to say — T have suffered an on-the-job industrial injury — to this part of my right arm — on this date — resulting in this condition.’ — but; claimant did impart sufficient information to his employers for them to have actual knowledge of injury . . .”

Based on conflicting evidence of the record, the court resolved the matter of credibility and determined:

“The employer knew of the preexisting condition, knew claimant was having problems, knew claimant had to stop work to have surgery for his problem, and knew claimant’s work was aggravating claimant’s symptoms. This actual knowledge is sufficient to satisfy both the letter and the purpose of the notice requirements of Section 39-71-603, MCA.”

For more than 50 years, this Court has been saying that the first duty of those who administer the Workers’ Compensation Act is to give the employee the greatest possible protection consistent with its purposes. Miller v. Aetna Life Insurance Company (1936), 101 Montana 212, 53 P.2d 704; in considering the Workers’ Compensation Act, all of the sections as originally enacted or amended, must be considered together in such manner as to give effect to the Act as a whole. State ex rel. Roundup Coal Mining Company v. Industrial Accident Board (1933), 94 Mont. 386, 23 P.2d 253.

The majority have not followed the standard of review applicable to workers’ compensation cases. We have said that the decisions of the Workers’ Court will not be disturbed if supported by substantial evidence. Skrukrud v. Gallatin Laundry Company, Inc. and Employees Commercial Union Insurance Company (1976), 171 Mont. 217, 557 P.2d 278. Where findings are based on conflicting evidence, the reviewing court’s function is confined to determining whether there is substantial evidence supporting such findings. It is not the court’s function to determine whether there is sufficient evidence to support contrary findings. Wilson v. Glacier General Assurance Company (Mont. 1983), 206 Mont. 63, 670 P. 931, 40 St.Rep. 1509; Stamatis v. Bechtel Power Corporation (1979), 184 Mont. 64, 601 P.2d 403. We have always stated that we will not substitute our judgment for that of the Workers’ Compensation Court as to the weight of evidence on questions of fact. Robbins v. Anaconda Aluminum Company (1978), 175 Mont. 514, 575 P.2d 67; Brurud v. Judge Moving and Storage Company (1977), 172 Mont. 249, 516 P.2d 558.

In the light of the findings made by the Workers’ Compensation Court on disputed evidence, and the usual standards of review applied to such findings, the duty of this Court is to sustain the decision of the Workers’ Compensation Court, and not set it aside on the dubious authority of a 1917 California case.

This Court has become the trier of both fact and law.

MR. JUSTICE HUNT concurs with the foregoing dissent.


author: MR. JUSTICE SHEEHY

text:
    THOMAS MALLOY and Harriet A. Malloy, Plaintiffs and Appellants, v. JUDGE’S FOSTER HOME PROGRAM, INC., and Gilmary Vaughan, Director, et al., Defendants and Respondents.
    No. 87-175.
    Submitted on Briefs Oct. 1, 1987.
    Decided Dec. 3, 1987.
    746 P.2d 1073.

      Erdmann & Wright; F. Woodside Wright, Helena, for plaintiffs and appellants.
    Knight, Dahood, McLean & Everett, Bernard J. Everett, Anaconda, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Thomas Malloy and Harriet Malloy appeal from an order of the District Court, Third Judicial District, Deer Lodge County, granting the defendants’ motion to dismiss on the grounds that plaintiffs have failed to state a cause of action for which relief could be granted. We affirm.

The plaintiffs present four issues on appeal. They are: (1) Whether the District Court erred in dismissing all claims of plaintiff Thomas Malloy; (2) Whether the District Court erred in dismissing Count I of plaintiff Harriet Malloy’s complaint for breach of contract; (3) Whether the District Court erred in dismissing Count II of plaintiff Harriet Malloy’s complaint which claimed that her termination was in violation of public policy; and, (4) Whether the District Court erred in dismissing Count III of Harriet Malloy’s complaint for breach of the implied covenant of good faith and fair dealing.

“Discovery House” is a home for underprivileged and disturbed youths in the Anaconda area. Discovery House is under the auspices of the Judge’s Foster Home Program, Inc., a non-profit corporation organized exclusively for charitable, religious, educational and scientific purposes. The program is licensed by the State of Montana Department of Social and Rehabilitative Services (SRS) and subject to its licensing requirements. The Home is operated by “house parents” whose duties include overseeing the day-to-day affairs of the home as well as providing a home-like atmosphere for the special residents of Discovery House.

Tom and Harriet Malloy were first employed as house parents in 1982. From 1982 until 1985, plaintiffs were employed on the basis of yearly contracts. In December, 1985, Harriet entered into a 13 month contract for her services. The contract made no mention of Tom nor was he a signatory to the contract. Although the contract was for a specified period it provided that either party could terminate the contract with 30 days notice.

On April 10, 1986, Tom Malloy orally abused one of the Discovery House residents in the presence of Jeananne Murphy, a social worker and volunteer member of the Discovery House Board of Directors. Although present during the incident, Harriet Malloy made no attempt to intervene. Subsequent to witnessing the child’s oral degradation at the hands of Tom Malloy, Murphy promptly filed a complaint with the Director of Discovery House, Sister Gilmary Vaughan and referred the incident to the regional supervisor of the SRS.

On April 17, 1986, Sister Vaughan notified Harriet Malloy that she was suspended with pay pending the outcome of the investigation by SRS. On April 30, 1986, SRS issued its report which concluded that Tom used vulgar language and admitted to doing so. The report further found Tom Malloy’s conduct on April 10 to be in violation of the State of Montana licensing requirements. The report also found that Harriet had acted negligently in not intervening during the April 10 incident.

Discovery House sent Harriet a letter on May 15, 1986, which stated:

“If you wish to continue your employment with the Judge’s Foster Home Program, Inc., under the conditions outlined in this correspondence, then please sign the original letter and return it to Sister Gilmary Vaughan before you return to work. You will be expected to return to work on May 23, 1986.
“If you choose not to agree to return under the stated conditions, then please notify the board of directors by May 23, 1986 in writing of your decision to resign, or your reasons why you cannot sign this agreement.” (Emphasis added.)

Harriet Malloy did not agree to the conditions delineated in the May 15, 1986 letter nor did she return to work on May 23, 1986 as she was directed. Subsequent to the SRS investigation and report being completed, Harriet requested a hearing on the complaint lodged against Thomas Malloy. Discovery House refused her request for a hearing.

On August 18, 1986, Discovery House terminated Harriet Malloy for her failure and refusal to return to work almost three months after the date she was directed to do so.

The plaintiffs filed a three count extensive and detailed complaint against Discovery House and its Board of Directors, in their individual and representative capacities. The District Court granted the defendant’s motion to dismiss the Malloys’ complaint. The plaintiffs appeal from the judgment of the District Court.

The plaintiffs submit that the District Court erred in dismissing the claims of Thomas Malloy against the defendant. We disagree.

In Hasbrouck v. Krsul (1975), 168 Mont. 270, 272, 541 P.2d 1197, 1198, this Court, in discussing the standard of review to be applied in cases dealing with a motion to dismiss, stated:

“. . . a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Citing Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84. See also Gebhart v. D.A. Davidson Co. (Mont. 1983), 203 Mont. 384, 661 P.2d 855, 40 St.Rep. 521; Busch v. Kammerer (1982), 200 Mont. 130, 649 P.2d 1339.

Thomas Malloy can prove no set of facts in support of his claim which would entitle him to relief. Thomas Malloy claims that an employment relationship existed between Discovery House and himself. He asserts that he was the “designee” mentioned in Clause VII of the contract which Harriet signed in December, 1985. Clause VII provides:

“The party of the second part agree [sic] that she or her designee, shall remain in the house when there are youth present. At no time is a youth to be left in the facility alone.”

Thomas Malloy is not mentioned in Clause VII, in fact there is no mention of Thomas Malloy in the entire contract. Although Malloy had been a party to the contract in previous years, the record shows that he was not a signatory to the contract and in fact Sister Vaughan negotiated with Harriet Malloy and constructed her employment contract with the specific purpose of excluding him.

There is nothing in paragraph VII of this contract that could be construed to effect an employment relationship between Discovery House and the designee. The contract and the “Guide for House Parents” which was given to Harriet Malloy make it clear that it is the house parent’s, not Discovery House’s, responsibility to secure a replacement or designee and the houseparent seeking a replacement is further responsible for compensating the designee.

The contract is straight-forward and clear. There is no ambiguity in regard to Thomas Malloy’s relationship with Discovery House under the terms of the contract; the relationship was nonexistent. In Danielson v. Danielson (1977), 172 Mont. 55, 58, 560 P.2d 893, 894, this Court stated:

“It is clear from Montana cases that where the language of a written contract is clear and unambiguous there is nothing for the court to construe; the duty of the court is simply to apply the language as written to the facts of the case, and decide the case accordingly.”

We conclude that no contractual employment relationship existed between Thomas Malloy and Discovery House and thus affirm the District Court’s action in dismissing all claims of Thomas Malloy.

Appellant asserts that the District Court erred in dismissing Harriet Malloy’s complaint against the defendants for breach of contract. We disagree.

Harriet Malloy premises her breach of contract theory on Clause VIII of her December 31, 1985 employment contract which provides:

“This agreement is subject to termination by either party hereto, upon giving thirty (30) days written notice to the other party of the intent to terminate.”

Harriet Malloy insists that Discovery House did not give her 30 days advance notice before terminating her employment and so was in breach of contract. Mrs. Malloy contends that the allegation places the 30 day notice requirement in issue thus precluding dismissal of the complaint by the District Court.

It is a well-settled rule of contract law that a party who commits the initial breach cannot complain of a subsequent breach by the other party. Bradford v. New York Times Corp. (2d Cir. 1974), 501 F.2d 51; Watson v. Auburn Iron Works, Inc. (1974), 23 Ill.App.3d 265, 318 N.E.2d 508; Aerostatic Engineering Corp. v. Szczawinski (1973), 1 Mass.App.Ct. 141, 294 N.E.2d 521.

In Rogers v. Relyea (1979), 184 Mont. 1, 8, 601 P.2d 37, 41, this Court held:

“The general rule is that a party committing a substantial breach of a contract cannot maintain an action against the other contracting party or his predecessor in interest for a subsequent failure to perform if the promises are dependent. 17 Am.Jur.2d Contracts, Section 366 p. 807. A substantial or material breach is one which touches the fundamental purposes of the contract and defeats the object of the parties in making the contract.”

In the immediate case, Harriet Malloy and Discovery House entered into an employment contract. The fundamental purpose of the contract was that Harriet Malloy would provide house parent services for Discovery House for which the Judge’s Foster Home Program would pay her. Harriet Malloy committed a substantial and material breach of her employment contract by failing to report for work for some 88 days after being directed to do so. As Harriet Malloy committed the initial material breach, she cannot maintain an action against Discovery House for breach of contract.

Further, we concur with the opinion of the District Court that the defendants complied with the provision requiring 30 day notice by sending Harriet Malloy the May 15, 1986 letter informing her that if she wished to continue her employment with the Judge’s Foster Home, she should return to work by May 23, 1986. Harriet Malloy did not return to work on May 23, 1986, in fact at the time of her termination, 88 days had passed since she was invited to return. Harriet Malloy has failed to state a cause of action against defendants for breach of contract for which relief could be granted.

Plaintiff Harriet Malloy next contends that the District Court erred in dismissing Count II of her complaint alleging that her termination was in violation of public policy. Harriet Malloy submits that her termination was in violation of her federal and state constitutional right to due process of law. We find the contrary to be true.

Harriet Malloy proffers the argument that her employment contract is a property right and therefore rights of due process attach. In Board of Regents v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561, the United States Supreme Court defineated the elements necessary for an employee to have a protected property interest in their employment. The Court held:

“[to] have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”

The court further held that:

“The source of an entitlement establishing a property interest may be found in state law or in rules and understandings existing between the individual and his employer.”

Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

In Reiter v. Yellowstone County (Mont. 1981), [_Mont._,] 627 P.2d 845, 848, 38 St.Rep. 686, 688, this Court held:

“The employee must be able to point to an independent source such as state law or rules or understandings between the employer and his employees.”

Harriet Malloy maintains that the December 31, 1985 employment contract constitutes the independent source as contemplated in Reiter, supra. This contention is without merit. Mrs. Malloy has failed to specify any state law or rules or understanding with her employer that could be construed as an independent source entitling her to due process prior to termination.

As Harriet Malloy cannot establish that she had a property interest in her employment at Discovery House, we need not address the issue of whether Discovery House’s actions in denying her request for a hearing violated her due process rights.

“The first question to be answered is whether appellant had a property or liberty interest which is accorded due process protection by the Fourteenth Amendment to the United States Constitution and Article II, Section 17, of the Montana Constitution. (Citations omitted.) Only if such an interest is established, may the question of whether due process protections have been violated be considered.” Akhtar v. Van De Wetering (1982), 197 Mont. 205, 210, 642 P.2d 149, 152.

Lastly, Mrs. Malloy contends that the District Court erred in dismissing her complaint against the defendants for breach of the implied covenant of good faith and fair dealing. We disagree.

It is well settled that the implied covenant of good faith and fair dealing exists in all employment situations and that “[t]he duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.” Gates v. Life of Montana Insurance Co. (Mont. 1983), 205 Mont. 304, 668 P.2d 213, 214, 40 St.Rep. 1287, 1288; See also Crenshaw v. Bozeman Deaconess Hospital (Mont. 1984), [213 Mont. 488,] 693 P.2d 487, 41 St.Rep. 2251.

The record is replete with examples of the defendants efforts to fairly resolve the situation so that Mrs. Malloy could continue in the employ of the Judge’s Foster Home Program, Inc. Mrs. Malloy refused to avail herself of any of the opportunities that were presented to her.

The defendants had a legitimate business reason for terminating Harriet Malloy’s employment. At the time of her discharge Mrs. Malloy had refused to return to work 88 days after being directed to do so. As previously stated her conduct constituted a material breach of her employment contract and the defendants appropriately exercised the remedy of discharge as their reasons for doing so were fair and honest. Flanigan v. Prudential Federal Savings and Loan Assn. (Mont. 1986), [221 Mont. 419,] 720 P.2d 257, 43 St.Rep. 941.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and McDONOUGH concur.


text:
    STATE OF MONTANA, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, In and For the County of Cascade, et al., Respondents. STATE OF MONTANA, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Relator, v. DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT of the State of Montana, In and For the County of Yellowstone, et al., Respondents.
    Nos. 87-223, 87-234.
    Submitted Aug. 11, 1987.
    Decided Dec. 3, 1987.
    746 P.2d 1077.
    Crowley Law Firm, Bruce R. Toole, Moulton Law Firm, K. Kent Koolen, Billings, for relators.
    William G. Jungbauer, Minneapolis, Minn., John W. Larson, Missoula, David B. Kiker, Aurora, Colo. Wright, Tolliver & Guthals, Robert S. Fain, Billings, for respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In cause No. 87-223, Burlington Northern Railroad Company as relator petitions for a writ of supervisory control directed to the District Court, Eighth Judicial District, the Hon. Thomas M. McKittrick and the Hon. John M. McCarvel, presiding judges therein, ordering dismissal of two causes of action pending in that court.

In cause No. 87-234, Burlington Northern Railroad Company as relator has petitioned for a writ of supervisory control directed to the District Court of the Thirteenth Judicial District, and to the Hon. Diane G. Barz, the presiding judge therein, ordering dismissal of two causes of action pending in that court.

In each of the pending petitions in this Court, relator contends that the district judges in each of the causes should have dismissed the same on the basis of forum non conveniens. Because the issues involved are the same, with almost identical arguments being made in each case, we have ordered that the petitions be consolidated for purposes of our consideration and opinion.

The first issue raised by the respondents is that the applications filed by Burlington Northern Railroad are insufficient in law for the issuance of writs of supervisory control. In each of these proceedings the jurisdictional requisites for the issuance of writs of supervisory control are inextricably interwoven with the merits of the applications for such writs. Since we have determined in each cause that a writ of supervisory control should not issue, we do not rule directly on the jurisdictional question.

In cause No. 87-223, the application of Burlington Northern is supported by documents in two causes now pending in the District Court, Eighth Judicial District, Cascade County. One is the case of Shirley Elaine Houser v. Burlington Northern Railroad Company, in which the Hon. Thomas M. McKittrick is the presiding district judge. The other is Charles M. O’Brien v. Burlington Northern Railroad Company, in which the Hon. John M. McCarvel is the presiding district judge. In each of those causes, Burlington Northern has. filed motions for dismissal on the basis of forum non conveniens, and in each of the said causes, the respective judges have denied such motions to dismiss.

In cause No. 87-234, it appears that there are pending in the District Court, Thirteenth Judicial District, Yellowstone County, before the Hon. Diane G. Barz, the presiding district judge, two causes of action. One is that of Andrew Samms v. Burlington Northern Rail road Company and the other is Gary D. Epple v. Burlington Northern Railroad Company. In each of those pending causes of action in the Yellowstone County District Court, Burlington Northern has filed motions to dismiss on the basis of forum non conveniens. In each cause, the Hon. Diane G. Barz, as presiding district judge has denied said motions.

In each of the foregoing pending District Court actions, it is alleged by relator, and not refuted, that the accident giving rise to the claims against the railroad occurred in a state other than the State of Montana; that the plaintiffs are residents in a state other than Montana; that all factual witnesses are residents of states other than the State of Montana; that the plaintiffs are represented by counsel from a state other than the State of Montana; and, that the addition of these cases to the District Court’s docket imposes an unnecessary burden on the judicial resources and the taxpayers of the State of Montana, as well as an unnecessary impediment to litigants who do reside in Montana and whose counsel are also Montana residents.

In addition to the four cases pending in the District Court, above cited, the applications show that there is further pending in District Courts three additional causes of action: Averill v. BN, cause No. 85-200, Second Judicial District; Lang v. BN, cause No. 65477, Fourth Judicial District; and, Cheney v. BN, cause No. 86-319, Sixth Judicial District.

All of these pending actions in the district courts have been brought against Burlington Northern under the provisions of the Federal Employees Liability Act and the Federal Safety Appliance Act (45 U.S.C. Section 1-60).

It is clear that the District Courts before us have jurisdiction of FELA cases under 45 U.S.C. Section 56. The federal statute provides that an action may be brought in a district court of the United States, in the district of the residence of the defendant, the district in which the cause of action arose, or in which the defendant railroad shall be doing business at the time of commencing the action. Further, “the jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several states.”

On four previous occasions, Burlington Northern, or its predecessor, Great Northern Railway Company, has importuned this Court for an application of the doctrine of forum non conveniens in FELA cases. Bevacqua v. Burlington Northern (1979), 183 Mont. 237, 598 P.2d 1124; LaBella v. Burlington Northern (1979), 182 Mont. 202, 595 P.2d 1184; State ex rel. Great Northern Ry. Co. v. District Court (1961), 139 Mont. 453, 365 P.2d 512; Bracy v. Great Northern Ry. Co. (1959), 136 Mont. 65, 343 P.2d 848.

In State ex rel. Great Northern Ry. Co. v. District Court, supra, it appeared that 18 FELA cases had been filed in the District Court in Silver Bow County in 11 years. This Court said there in denying a dismissal on the ground of forum non conveniens:

“. . . We do state, however, that if a substantial increase in this type of litigation is called to our attention in the future we will reexamine the situation in light of what we have herein stated.”

139 Mont. at 457, 365 P.2d at 514.

In LaBella v. Burlington Northern, supra, we had a case where the District Court dismissed a FELA case upon the grounds of forum non conveniens. This Court reversed in LaBella, stating:

“We fully recognize that the state is not constrained by federal law to reject the doctrine of forum non conveniens in FELA actions. However, we find the policy favoring the injured railroad worker’s choice of forum to be highly persuasive. This, in addition to the state’s “open court policy” compels this Court to hold the doctrine of forum non conveniens inapplicable to FELA suits filed in Montana District Courts. We repeat the warning set forth in State ex rel. Great Northern Ry., supra, 139 Mont. at 457, 365 P.2d 514 .... ‘if a substantial increase in this type of litigation is called to our attention in the future we will re-examine the situation in light of what we have herein stated.’ ”

182 Mont. at 207, 595 P.2d at 1187.

In the application now pending before us, Burlington Northern contends that the pendency of seven cases before the District Court of Montana represents a substantial increase in the number of FELA cases, and it is now time to apply the doctrine of forum non conveniens, so as to order dismissal of these actions in the circumstances described. In support of its application, Burlington Northern offered in the District Court of Cascade County and now here, affidavits showing that for fiscal year 1986, the total expenditure for the District Court budget was $903,444.00 and from that determined that the daily costs of operating the District Court approximated $3,475.00 per day. It further showed that the direct costs of conducting a civil jury trial approximated $822.79 per day.

In Yellowstone County, in fiscal year 1986, the total expenditure for the District Court was $1,459,430.00. Its budget for 1987 is $1,576,776.00. The costs of operating the District Court is calculated there at approximately $6,064 per day. It further appears that in Yellowstone County, that since 1979, the number of cases to 1986 had increased to 4,231, an increase of nearly 20 percent. That number includes domestic actions, but excludes probate proceedings, juvenile and insanity actions. It is estimated that in Yellowstone County, the direct costs of a district court trial is about $3,000.00 per week.

Burlington Northern also filed statistics obtained from the Montana State Judicial Information System. From those statistics, it appears that in 1986, there were 16,397 civil filings statewide, of which 1,828 related to tort. The numbers increased from 1984, when there were 15,045 civil filings statewide, of which 1,640 represented tort actions.

The statistics provided by Burlington Northern in its applications fail to meet the “substantial increase” in FELA cases so as to show an intolerable burden on this state in maintaining its ‘open door’ policy and meeting the obvious intention of the federal statute that the plaintiff could make a choice of forum in which to try his FELA claim. Burlington Northern concedes that most FELA cases are settled before they ever go to trial. The pendency of two FELA cases in the District Court of Cascade County, two in Yellowstone County, and one each in Missoula County, Silver Bow County, and Park County are insufficient in number to cause this Court to move from its settled decision in the earlier cases to maintain the “open door” policy and to follow the provision of our Montana Constitution that “courts of justice shall be open to every person and speedy remedy afforded for every injury of person, property or character.” Art. II, Section 16, 1972 Mont. Const. LaBella, 182 Mont. at 207, 595 P.2d at 1187.

The budgetary figures presented for Yellowstone and Cascade Counties represent the total operation of the whole District Court, and all the cases, civil and criminal, that come before those courts. There are three district judges serving the Eighth Judicial District, including Cascade County, and five district judges serving the Thirteenth Judicial District, including Yellowstone County. Although the district judge in Yellowstone County indicated that a trial may not be available in that county for two years, it does not appear that the removal of two cases from its docket will substantially lessen the burden on that District Court, nor would the elimination of seven cases statewide have a like effect on all state courts. Seven pending FELA cases, where there are over 16,000 civil cases filed statewide per year is not a significant number of cases as to require the exercise of our power of supervisory control.

Counsel for Burlington Northern submit that the filing of FELA cases in Montana courts by out-of-state residents and out-of-state counsel may represent a form of forum shopping. However that may be, a choice of forum is given by federal statute in FELA cases. The United States Court, in what may be its first case acknowledging the doctrine of forum non conveniens, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 510, 67 S.Ct. 839, 844, 91 L.Ed. 1055, 1063, noted the argument of the plaintiff in that case that he was more likely to get a large verdict in a New York Court than in a Virginia Court saying: “. . . It is a strange argument on behalf of a Virginia plaintiff that the community which gave him patronage to make his business valuable is not capable of furnishing jurors who know the value of the goods they store, the building they are stored in, or the business their patronage creates . . . The net of this is that we cannot say the District Court was bound to entertain a provincial fear of the provincialism of a Virginia jury . . .”

In the light of the statements of this Court and LaBella, supra, and earlier cases, and the paucity of evidence submitted by the applicant that pending FELA cases are a burden on the Montana courts or the taxpayers of this state, the applications in each cause for a writ of supervisory control are denied.

The petitions are DISMISSED.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, HUNT, GULBRANDSON and McDONOUGH concur.


author: MR. JUSTICE McDONOUGH

text:
    TOMMY LEROY WALKER, Plaintiff and Respondent, v. STATE OF MONTANA, Defendant and Appellant.
    No. 87-246.
    Submitted on Briefs Sept. 17, 1987.
    Decided Dec. 3, 1987.
    746 P.2d 624.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Jeff McAllister, Deputy Co. Atty., Great Falls, for defendant and appellant.
    Ralph Randono, Randono, Donovan & Macek, Great Falls, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant, the State of Montana, challenges the decision of the District Court of the Eighth Judicial District. We reverse and remand for proceedings consistent with this opinion.

On December 16, 1986, Respondent Walker twice refused police testing to determine blood alcohol content. Both refusals occurred following arrests by Great Falls Police Officer Chris Hickman. After the first arrest, Walker posted bond and returned to his car where Hickman arrested him for the second time. The issue on appeal concerns the adequacy of the State’s notice on the consequences incident to refusing police testing where a valid arrest for DUI occurs.

Before both refusals, Hickman read aloud to Walker the following advisory consent form:

“STATE OF MONTANA
IMPLIED CONSENT LAW
Advisory Form
Montana Law states, in part,
“61-8-402 — Chemical blood, breath, or urine tests. (1) Any person who operates a motor vehicle upon the ways of this state open to the public shall be deemed to have given his consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a motor vehicle while under the influence of alcohol.
“1. You are advised that:
“(a) You are under arrest for driving or being in actual control of a motor vehicle while under the influence of alcohol;
“(b) The results of the chemical test may be used in evidence against you in any criminal proceedings resulting from this arrest.
“2. You are advised that:
“(a) If you refuse to submit to a chemical test as requested by the arresting officer, none shall be given;
“(b) If you refuse the test, the arresting officer shall immediately seize your Montana driver’s license on behalf of the Motor Vehicle Division;
“(c) If your driver’s license was valid and in full force and effect at the time of your arrest, the arresting officer shall issue a 72-hour driving permit.
“3. You are advised that:
“(a) If you have refused the chemical test, the arresting officer shall forward to the Motor Vehicle Division a sworn statement that you refused.
“(b) Upon receipt of the sworn statement, the Motor Vehicle Division shall suspend your driver’s license and driving privilege for 90 days upon a first refusal; or shall revoke your license and driving privilege for one (1) year upon a second or subsequent refusal within a five (5) year period. In either case, no provisional or probationary license may be issued.
“4. You are advised that, in addition to any test administered at the direction of a peace officer, you may, at your own expense, have a physician or registered nurse of your own choosing administer a test for determining the amount of alcohol in your blood.
“5. At your request, full information concerning the test requested shall be made available to you or your attorney.”

After reading the form to Walker after each arrest, Officer Hickman asked Walker if he understood the form. Walker responded each time that he understood, and refused both of the tests to be administered by the police. Walker made no inquiry concerning the availability of an independent test.

Walker petitioned for reinstatement of his license. At the hearing held pursuant to the reinstatement request, Walker’s counsel stated that the form misled Walker into believing that if he refused to take the test administered by the police, he forfeited his right to an independent test. The District Court found the form misleading because the phrase, “none shall be given,” (Emphasis added.], in paragraph 2(a), and the phrase, “in addition to any test administered by the police officer,” (emphasis added), in paragraph 4, seem to require that the police test precede any independent test. The lower court then ruled that State v. Swanson (Mont. 1986), [222 Mont. 357,] 722 P.2d 1155, 43 St.Rep. 1329, controlled as a matter of law and reinstated Walker’s license. On appeal, the State points out that Walker unequivocally refused the tests, and that Walker told Officer Hickman that he understood the form.

Swanson mandates that the State refrain from frustrating the criminally accused’s right to an independent blood test pursuant to Section 61-8-405(2), MCA, for exculpatory evidence in a criminal DUI prosecution. Swanson, 722 P.2d at 1158. This Court also made it clear in Swanson that the criminally accused DUI defendant had the right to an independent blood test whether or not the accused agreed to submit to police BAC testing. Swanson, 722 P.2d at 1157. However, the current case concerns the application of Section 61-8-402, MCA, which provides a civil penalty for refusing to take the blood test offered by the arresting police officer. The rule from Swanson does not control interpretation of this statute, and the District Court incorrectly applied Swanson. See State ex. rel. Majerus v. Carter (Mont. 1984), [214 Mont. 272,] 693 P.2d 501, 504, 41 St.Rep. 2468, 2470. This is true because the “revocation of a driver’s license is a civil sanction, not a criminal penalty.” In the Matter of the Petition of Burnham (Mont. 1985), [217 Mont. 513,] 705 P.2d 603, 607, 42 St.Rep. 1342, 1346. And Walker’s “refusal to submit to a chemical test is an issue separate and distinct from whether or not he was guilty of DUI.” Burnham, 705 P.2d at 608.

Although Swanson's criminal due process guarantees do not apply to license suspension under Section 61-8-402, MCA, the State must still show that the defendant refused police testing in order to revoke the defendant’s driver’s license. Blake v. State (Mont. 1987), [226 Mont. 193,] 735 P.2d 262, 263, 44 St.Rep. 580, 581. And failure to properly inform the defendant of the consequences of refusing to take the test may invalidate the penalty. In re the Matter of Orman (Mont. 1986), [224 Mont. 332,] 731 P.2d 893, 895, 43 St.Rep. 2228, 2231. In the current case, Walker argues that Orman supports the lower court’s license reinstatement.

In Orman, the defendant refused to take the police test for the second time within five years. A second refusal within five years results in the loss of the license for one year. The arresting officer in Orman did not know that the defendant had refused the test before, and told the defendant that refusal would result in only a ninety day suspension. Despite the mistake, the State took the license for one year. The District Court ordered that the license be returned to the defendant, and we affirmed holding that:

“While we do not choose to set forth any rule controlling the information to be given by an officer at the time of such an arrest, we conclude in this specific set of circumstances, that Mr. Orman’s refusal to submit to the breathalyzer test contained a condition of a ninety day driver’s license suspension.”

Orman, 731 P.2d at 895.

The facts in the current case distinguish it from Orman. In Orman, the arresting officer unintentionally but affirmatively misled the defendant into believing that his refusal carried a lesser penalty than the penalty that the State actually imposed. In the current case, the arresting officer read a form which contains language from Section 61-8-405, MCA, and Section 61-8-402, MCA. Although, as the District Court found, the mixing of the language from these two statutes could lead an individual to misconstrue the penalties incident to refusing the test, the form does not affirmatively mislead, and Walker voiced no confusion.

Furthermore, unlike the information given in Orman, the form did not induce Walker to believe that the penalty for refusing the test was less than what the State imposed. Rather, Walker claimed that he believed the penalties for refusing the test were greater than they actually were, i.e., Walker claimed he thought he forfeited not only his license, but also his right to independent testing. In regard to the license, however, Walker got what he bargained for; by refusing the testing, he lost his license. Any confusion from the form over Walker’s right to independent testing does not excuse Walker’s refusal to be tested, and neither Swanson nor Orman control.

This case warrants application of Johnson v. Division of Motor Vehicles (Mont. 1985), [219 Mont. 310,] 711 P.2d 815, 42 St.Rep. 2045. In Johnson, the defendant claimed that confusion over his Miranda rights invalidated the suspension of his license. In response we stated that:

“there is no evidence that respondent was confused by the apparent conflict between the Miranda warnings and the lack of a right to an attorney during a sobriety test. There is only counsel’s bald assertion to that effect. Under these circumstances, respondent will not be heard to argue that he was confused by his rights under Miranda.” (Emphasis in original.)

Johnson, 711 P.2d at 818. As in Johnson, the scope of review here is broad, and we are free to make our own findings. Johnson, 711 P.2d at 816. Following both arrests, Walker unequivocally stated that he understood the consequences of refusing the tests. After the first refusal, he returned to his car and drove from the scene. Walker’s conduct prevented the State from ascertaining through testing whether or not alcohol impaired his driving. Under these circumstances, as in Johnson, the bald assertion long after the arrest that confusion prevented an effective refusal fails to overcome the suspension mandated by the implied consent statute. We reverse and remand for proceedings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS J. CYR, Defendant and Appellant.
    No. 87-249.
    Submitted on Briefs Oct. 29, 1987.
    Decided Dec. 3, 1987.
    746 P.2d 120.
    C.F. Mackay, Anaconda, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, John N. Radonich, Co. Atty., Anaconda, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Third Judicial District of the State of Montana, in and for the County of Deer Lodge, the Honorable Robert Boyd presiding. The appellant was charged with the crime of aggravated assault, a felony, in violation of Section 45-5-202(1), MCA. He was found guilty by a jury after a five day trial of the crime of felony assault. Thereafter a notice was filed requesting a new trial based on newly discovered evidence. The motion was denied by the District Court and this appeal followed. We affirm.

Testimony at trial indicates that Brenda Cyr, appellant’s wife, met two men from Butte, Montana at an Anaconda, Montana, bar, on June 25, 1986. One of the men, Mark Spolar, testified that he understood that Brenda and her husband were separated. During the afternoon of June 25, 1986, Brenda, in the company of Spolar and others, frequented several bars in the city of Anaconda. Throughout the late afternoon and evening, several encounters were had with the appellant who was trying to get his wife to come home. In one of the encounters, Brenda went over to the appellant’s car, he jerked her around, grabbed her by the throat and cursed her, all of which made her more reluctant to accompany the appellant to their home.

After frequenting several bars most of the afternoon and early evening, Spolar, with several of his motorcycle club friends decided to return to Butte. When they went outside, one of them, after getting on a motorcycle and starting off, was pursued by the appellant in his car. This appeared to them to be an attempt to run them over.

During the day when appellant went to one of the bars where the group was partying, and after he had confronted several of them, several members of the group reported seeing a gun on appellant, though he did not use it in a threatening manner. However, the several of the members were alerted that he was armed. This called for some discussion, particularly after his alleged attempt to run down the motorcyclists.

At closing time, Mark Spolar, Manuel Madrid, and Brian Shepard, went outside the Garden Bar, where they again encountered the appellant, seated in his car. Manuel Madrid by that time had obtained a hand gun from Jean Woodbury, one of the women in the party, so that they would have some “equal protection” in case they were confronted by the appellant. About that time, Spolar confronted the appellant in his car and he attempted to get him out of his car and in the process kicked out at least one window. At that time the appellant fired his pistol, hitting Mark Spolar in the groin area. Several more shots were fired by the appellant, and at that time Manual Madrid opened fire on the appellant. One of the shots fired by Madrid wounded appellant’s small son who was seated inside the appellant’s car.

An investigation followed and the appellant and Madrid were both charged by the authorities of Deer Lodge County. The appellant received a nine year sentence with four years suspended. Also, his sentence was enhanced by an additional three years, to be served consecutively with the above sentence, for the use of a firearm in the commission of the offense.

Three issues are presented for review by this Court:

(1) Whether there was sufficient evidence before the jury upon which to base their verdict.

(2) Did the District Court err in refusing to grant appellant’s motion to dismiss at the close of the State’s case?

(3) Did the District Court err in refusing to grant the appellant’s motion for a new trial on the basis of newly discovered evidence?

Concerning issue 1, sufficiency of the evidence, there is no dispute that the appellant shot Mark Spolar. There were witnesses other than Spolar to that effect, and Spolar’s testimony is sufficient of itself to convict. Spolar’s activities in kicking out the window were not sufficient, and were not found to be sufficient by the jury, for the appellant to open fire, shooting through the door of his car and seriously wounding Spolar. This is a question for the jury. The jury heard the evidence in the five-day trial and their verdict indicates that after listening to all witnesses they found the appellant guilty.

In proving the offense of felony assault, the State had to prove the following elements: (1) purposely or knowingly cause; (2) bodily injury; (3) to another; (4) with a weapon. Section 45-5-202(2), MCA.

In State v. Oliver (Mont. 1987), [228 Mont. 322,] 742 P.2d 999, 1002, 44 St.Rep. 1567, 1572, we stated:

“The standard for review of the sufficiency of the evidence is: “Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573.

Under this standard there was sufficient legal evidence to support the jury’s verdict.

The second issue is whether the court properly denied defendant’s motion to dismiss. Here the appellant’s argument is tied closely to the first issue where we found sufficient evidence to convict. As noted above, there was substantial credible evidence to support the charges and therefore the trial court correctly denied appellant’s motion.

Issue 3, did the court properly deny the motion for a new trial? Section 46-16-702, MCA, provides for the granting of a motion for new trial “in the interest of justice.” Where the basis for the motion for new trial is newly-discovered evidence, the long-standing criteria for evaluating the motion has been set forth by this Court in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052. In Greeno this Court established the following criteria:

“(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness.

Greeno, 135 Mont. at 586, 342 P.2d at 1055. All six of the criteria are stated in the conjunctive, and as noted below, defendant fails to establish at least the first three.

In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351, this Court held that the decision to grant a new trial lies within the discretion of the trial judge and will not be disturbed on appeal unless a clear abuse of discretion is shown. We have also noted that motions for a new trial based on newly-discovered evidence are not favored because the defendant has already had time, prior to trial, to prepare his case. Greeno, supra. Two recent cases cited the criteria in Greeno. State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 909, 41 St.Rep. 1277, 1287; and State v. Short (Mont. 1985), [217 Mont. 62,] 702 P.2d 979, 984, 42 St.Rep. 1026, 1032. In Kutnyak, it was only necessary to cite three of the criteria, but we note that all six are appropriate.

Noting the evidence presented in light of the Greeno criteria, we note a bullet hole in the car that was previously unfound was observed by appellant’s counsel during trial. He had ample opportunity to question the State’s expert witnesses on firearms, but now alleges he did not appreciate the significance of that evidence. However, the vehicle had been impounded on the day of the shooting, June 26, and was available for inspection and examination by the appellant during the whole period of some six months. Having failed to bring this forward, the evidence is not sufficient to set aside the verdict.

Concerning the second criterion for evaluating newly-discovered evidence, regarding whether it could have.been discovered earlier, the appellant had considerable time to find this evidence. Much of the above analysis applies here. Having failed to bring it to the attention of the court such failure comes too late in this trial to set aside the verdict.

A third criterion is that appellant must show that the presence of the evidence at trial would probably have produced a different result. As noted above, there was no other supporting evidence at trial for the contention that he now makes claiming Spolar had a gun at the time he approached the appellant’s vehicle. This “new evidence” does not resolve a disputed point in the appellant’s favor, rather it attempts to raise an entirely new issue which is not supported by any other facts in evidence. Further, this “new evidence” is not necessarily inconsistent with the testimony of the trial. Manuel Madrid apparently fired four shots at the appellant’s vehicle and some were fired from an angle behind the vehicle as the appellant sped away from the scene of the trouble.

The trial judge heard the appellant’s argument for a new trial and ruled against that motion and stated the following:

“There certainly has not been any exhibition of diligence in examining the vehicle, because the Court notes it was impounded on or about the 27th of June, and subsequently made available to the witness for the State, just as it was readily available for any witnesses that the defendant wished to present. It does notthat this is in fact new evidence, but is, at most, evidence which was not fully explored by the Defendant, and the Motion for New Trial is denied.

The decision of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and McDONOUGH concur.

MR. JUSTICE SHEEHY,

specially concurring:

I agree with the result based on the jury verdict.