# Rathbun v. Taber Tank Lines, Inc. > Montana Supreme Court · May 20, 1955 · 129 Mont. 121 URL: https://www.frixlaw.com/law-library/cases/9630097 ## Case - **Full name:** RUTH D. RATHBUN, Claimant and Appellant, v. TABER TANK LINES, INC., Defendant and Respondent, and LIBERTY NATIONAL INSURANCE CO., Defendant and Respondent - **Court:** Montana Supreme Court - **Decided:** May 20, 1955 - **Citations:** 129 Mont. 121; 283 P.2d 966 - **Precedential status:** Published - **Opinion:** Dissent by Davis - **Judges:** Angstman, Davis, Adair, Anderson, Bottomly - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9630097 ## Opinion text MR. JUSTICE DAVIS: I dissent, and I shall come quickly to the point in giving my reasons. *134 If the industrial accident board had found that Paul G. Rathbun died because of heart failure proximately caused or aggravated by the rigors of his employment as a truck driver and had accordingly awarded the claimant compensation, the citations in the majority opinion of Hoage v. Royal Indemnity Co., 67 App. D.C. 142 , 90 F. (2d) 387; McCormick Lumber Co. v. Department of Labor and Industries, 7 Wash. (2d) 40, 108 Pac. (2d) 807 , and like decisions might be apposite, for then the first question here would be whether reasonable men might draw that conclusion from the evidence in this record. If so, we would affirm the finding made, and properly enter upon the inquiry thus presented with which the majority opinion is concerned, i.e., whether in point of law heart failure may be an industrial accident under our statute. But we have no such case at bar. The board has found to the contrary that Paul G. Rathbun’s death was “caused by a failure of the heart by reason of its previously diseased condition.” The district court has affirmed upon a finding framed in identical language, but amplified to the point that Rathbun’s death was not the “result of any accident or fortuitous event.” If these findings were without support in the evidence, or were unreasonable, arbitrary, or obviously capricious, the majority might appropriately cite and follow Jones v. California Packing Corp., Utah, 244 Pac. (2d) 640 . But the board’s findings and those of the lower court have solid support in the record. The testimony of the respondent’s witness sharply contradicts the claimant’s evidence. There is here a direct conflict upon matters which are material to a determination of the facts upon which this claim rests. The physical examination of the decedent by Dr. Kennan on March 20, 1952, cuts to the heart of the hypothetical questions put to Drs. Powers and Fallon. Dr. Kennan was not questioned further. The opinions of the claimant’s medical witnesses are in conflict upon the immediate cause of death, and there was no autopsy to resolve this conflict. Even so, the questions put to these witnesses incorporated *135 facts which upon the basis of the contradictory evidence in the record the board and trial court clearly did not find, and were not required to accept as true. These questions omitted obvious facts which both the board and the district court did accept as their findings reflect. Neither Dr. Powers nor Dr. Fallon was a heart specialist. Both were admittedly speculating upon the cause of Rathbun’s death; or as Dr. Powers put it he was theorizing only, because he did not have the benefit of any firsthand knowledge. The testimony offered by the claimant in the district court added nothing to the record made before the board. In such a case then it is our duty to affirm, where as here, I emphasize, the findings below rest upon substantial and conflicting evidence. We may only ask whether the board might reasonably reach the conclusion which it did. If so, rightly our inquiry ends. Wieri v. Anaconda Copper Mining Co., 116 Mont. 524, 531 , 156 Pac. (2d) 838 ; Anderson v. Amalgamated Sugar Co., 98 Mont. 23, 30 , 37 Pac. (2d) 552 , and cases there cited; Kerns v. Anaconda Copper Mining Co., 87 Mont. 546, 554 , 289 Pac. 563 ; 71 C. J., Workmen’s Compensation Acts, section 1267, page 1290, et seq. Compare Cook v. Hudson, 110 Mont. 263, 276, 277 , 103 Pac. (2d) 137 ; Sanders v. Lucas, 111 Mont. 599, 602, 603 , 111 Pac. (2d) 1041 ; Nolan v. Benninghoff, 64 Mont. 68, 72 , 208 Pac. 905 , and cases there cited; Hill v. Frank, 118 Mont. 11, 25 , 164 Pac. (2d) 1003 , and cases there cited; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 193 , 262 Pac. 887 ; Baker v. Citizens ’ State Bank, 81 Mont. 543, 547, 548 , 264 Pac. 675 ; Welch v. Thomas, 102 Mont. 591, 602, 603 , 61 Pac. (2d) 404 . In summary it seems to me plain that the board’s order denying compensation in this case is supported by findings which substantial, credible, competent evidence before it warranted, that indeed reasonable men could come to the conclusion which the board has reached, and which the trial judge has affirmed, and that accordingly it is wholly immaterial whether I would my *136 self conclude otherwise, if I were the trier of the facts involved in this controversy. I am not. I therefore decline at this time to determine whether in Montana we should follow the rule of Jones v. California Packing Corp., supra, or the reasoning of Dunn v. Morrison-Knudson Co., 79 Idaho 210 , 260 Pac. (2d) 398 , where there was a reversal for want of any evidence to sustain an award of compensation on facts substantially paralleling those of the appeal now submitted. On this record I am required by the law of this state to affirm without conjecturing what my opinion would be upon another case where properly we might vacate the findings below, and substitute our own judgment. That I may not permissibly do here as I read what is before me. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9630097. Public record. Not legal advice.