No. 12792 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

MARTIN BEATTY, 

Claimant and Respondent, 

WELLMAN POWER AND GAS, INC., and 

TWIN CITY FIRE INSURANCE COMPANY, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, ~udge presiding. 

Counsel of Record: 

For Appellant: 

McKeon and Skakles, Anaconda, Montana 

Michael J. McKeon argued, Anaconda, Montana 

For Respondent : 

Scanlon, Brolin and Connors, Anaconda, Montana 

Jack M. Scanlon argued, Anaconda, Montana 

;iJI,B 1% Filed: '* 

Submitted: May 7, 1975 

Decided : JU& a 1975 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is a workmen's compensation case arising from an 

industrial accident that allegedly occurred on November 13, 1972. 

Claimant Martin T. Beatty was employed as a pipefitter by Wellman 

Power and Gas, Inc. The Montana workmen's Compensation Division 

(hereinafter referred to as the Division) held that claimant 

failed to establish, by a preponderance of the credible evidence, 

that an industrial accident had in fact occurred and denied compensation. 

On appeal to the district court, Deer Lodge County, 

additional evidence was presented and that court found an industrial accident had occurred and remanded the matter to the Division 

for establishment of claimant's disability and determination of 

the medical payments and award due him. From the district court's 

judgment Wellman Power and Gas, Inc. and its insurer, Twin City 

Fire Insurance Company, appeal. Prior to the perfection of this 

appeal claimant died from causes unrelated to the accident. 

Martin T. Beatty claimed he suffered an industrial accident on November 13, 1972. Describing that accident he testified: 

It We were pulling a pipe with a come-along and it pinned me against 

the wall." He claimed he reported the accident to his employer on 

that date, November 13, 1972. The "~mployer's First Report of 

Occupational Injury or ise ease" filed with the Division on January 

12, 1973, put the allegations of the claim in issue by answering 

this question on the form: 

"Describe in full how accident happened and GIVE CAUSE-- 

Tell what employee was doing when injured: 

11 A,. We cannot describe accident because it was not 

reported to this office, and we will not acknowledge 

its happening on this job. This report made per Hartford 

request. It 
Claimant here, a former police officer retired on a total 

disability claim from the police pension fund, had filed three 

prior industrial accident claims and at the time of the alleged 

accident here had been the recipient of a settlement representing 

233 weeks of compensation for a total of $10,500 received on April 

27, 1972. 

The record iqdicates that claimant did not seek medical 

attention until November 22, 1972, nine days after the alleged 

injury, when he was admitted to the Anaconda Community Hospital 

under a diagnosis of "pneumonia", with this brief history--patient 

admitted to emergency room per wheel chair--complains of pain in 

back--dyspnea--coughing--feet swollen--has been drinking for two 

weeks. 

Several issues are presented by both parties on appeal. 

We find this issue dispositive: 

Did the district court err in reversing the ~ivision's 

finding that an industrial accident had not occurred? 

We note here that in Montana it is clearly established 

the district court is justified in reversing the findings of the 

Division only when there exists a clear preponderance of the evidence against its findings. IcAndrews v. Schwartz, 164 Mont. 402, 

523 P.2d 1379, 31 St.Rep. 517; Jones v. air's Cafes, 152 Mont.13, 

445 P.2d 923; Stordahl v. Rush Implement Co., 148 Mont. 13, 417 

P.2d 95. Consequently a detailed presentation of the evidence 

before the Division is crucial for a proper disposition of this 

case. 

The principal issue before the Division was whether 

claimant had, in fact, suffered an industrial accident with resultant injury as contemplated by section 92-418, R.C.M. 1947. 

To substantiate his claim an accident had occurred claimant introduced his own testimony and that of Ed Darcy and Alvin Palmer. 
Ed Darcy, a co-worker with claimant on the date of the 

alleged accident, explained the accident in this manner: 

"Yes, I raised a piece of pipe, it seems to me it 

was pretty heavy, it was pretty long and we were 

raising it up and Beatty was holding on to it and 

it was swinging and it is vague, but I can remember 

the pipe swinging and him backing up against the wall. 1 I 

However, on cross-examination Darcy testified: 

"MR. MCKEON: Ed, we had a telephone conversation two 

days ago, didn't we? A. Right. 

"Q. And you told me at that time your particular 

version of the event, didn't you? A. I think I told 

you that I didn't remember the accident. 

"Q. You also had a conversation with the adjuster 

from the insurance company, didn't you, sometime after 

the date of November 13, 1972? A. Right. 

"Q. And at that time I believe you told the insurance 

representative----- 

"Q. At that time did you tell him you didn't remember 

anything about this accident? A. I believe that is 

what I said. 

"Q. You said that, didn't you? A. Yes. 

"Q. And at that time you said that you believed that no 

accident in fact happened, isn't that correct? A. Well, 

let me put it this way the accident, it seemed so out 1 of proportion it didn t seem like an accident, 1 didn't 

say anything. ?I 

Still later during cross-examination, this information was 

elicited: 

"You received a phone call from Mr. Beatty some couple 

of weeks after the alleged accident, didn't you? A. 

Right. 

"Q. And at that time didn't you tell me that you felt 

that Mr. Beatty was trying to coerce you into saying 

there was an accident? A. No, I didn't say that, I 

said he was trying to influence me. 

"Q. Into saying that there was in fact an accident? 

A. Yes. It 

Claimant's second witness was Alvin Palmer, foreman at 

Wellman Power and Gas, Inc. He testified he was not present when 

the alleged accident occurred but he had asked claimant later that 
I I day if he was sick or something or had a bad ha.ngover or some11 11 thing. He further testified claimant appeared to have a stomachache or out of wind or something like that.'' 

When claimant testified on his own behalf, he explained 

the alleged accident this way: 

"Well, in pulling this 14 inch cast iron over the 

top of the tanks and the other pipes why Charlie 

Hubbard said that he didn't believe that we could 

hold it back without coming over the other pipes and 

we had a plank from the top over to the wall on a 

beam and I was standing out on this plank and when 

they raised it up and the fittings come in I couldn't 

hold it back and it backed me up against the wall. I' 

Claimant also testified he was hospitalized on November 22, 

1972, some nine days after the alleged accident occurred. However, 

the record indicates claimant's affliction was diagnosed as 

pneumonia at the time of his hospitalization. 

Dr. Howard Mize, Don Hornbacher, Jack Somers and Robert 

Wolf testified for defendants. 

Dr. Mize testified he examined claimant subsequent to the 

alleged accident when claimant was complaining of low back pain, 

difficulty in his gait and lack of sensation in his extremities; 

that claimant had quite an extensive history in regard to his back 

relating back to 1967, when he was examined and treated by Doctors 

Sereen and Davidson. In 1969, back difficulties again compelled 

claimant to see Dr. Trobough who gave him a 40% disability rating. 

Again, in 1971 and in 1972, claimant was treated by Drs. Simrns and 

Kanty in regard to his back. All of this medical history was prior 

to November 13, 1972, the date of the alleged accident involved here. 

In addition to his testimony Dr. Mize wrote a letter to 

defendants' attorney which was received into evidence by the Division. 

That letter stated: 

"In addition, in view of the nature of the accident 

that Mr. Beatty described to me it seems unlikely that 

this trivial injury in itself could have produced all 

of the pathology that Mr. Beatty claims. I' 
Power 

Jack Somers, a foreman at Wellman/and Gas, Inc. at the time 

of the alleged accident, testified that he was never notified about 

an accident. He testified: 

"Q. Were any phone calls ever made to you after 

the alleged accident? A. Yes. 

Q. Who called You? A. Mr. Beatty called me and 

one of his lawyer's secretaries called me. 

I l Q. What did Mr. Beatty say to you? A. He wanted 

to know if I could help him with his accident. 

"Q. What did you say? A. I said I knew nothing 

about it because it never was reported to me. 

"Q. Did he try to talk you into saying there was an 

accident? A. Yes. I I 

Finally, Robert Wolf, then general foreman of the pipe 

not 

crew at Wellman Power and Gas, Inc., testified he was/notified of 

an accident on November 13, 1972. He further stated he had seen 

claimant at the end of the work day on that day and his condition 

was "~ust like everybody else hurrying to get to the parking lot 

Jc Jc **" 

A.fter all evidence was submitted, the Division entered 

its findings of facts and conclusions of law. It held that the 

claimant did not suffer an industrial accident. Compensation was 

denied. 

Claimant then appealed to the district court. That court 

heard testimony of claimant and his wife, who did not testify at 

the Division hearing. Defendant Wellman Power and Gas, Inc. argues 

the wife's testimony was hearsay and that defense counsel objected 

at the hearing before the district court. However, it is of interest 

to note that the wife acknowledged, during testimony, that her 

husband's back problem predated the date of the alleged accident. 

The district court reversed the findings of the Division. 

Reviewing all of the evidence, we believe the district 

court erred in reversing the findings of the Division. The 

evidence does not clearly preponderate against those findings. 
The inconsistencies and vagueness of claimant's witnesses, combined 

with the attempts to influence their testimony and claimant's 

failure to see a doctor until nearly nine days had elapsed with the 

subsequent diagnosis of pneumonia, clearly support the ~ivision's 

decision. The Division occupied a far better position to make the 

crucial factual determination of whether an industrial accident had 

in fact occurred. It could observe the demeanor of the witnesses and 

determine their credibility. 

We are cognizant of the rule that the district court may 

reverse the Division only if substantial evidence clearly preponderating against the findings is introduced in the district court. 

Rumsey v. Cardinal Petroleum, Mont . 530 P.2d 433, 32 St. 

Rep. 1, and cases cited therein. However, in the instant case, 

the additional testimony added little or nothing to the testimony 

presented before the Division. Claimant retestified as to the facts 

of the alleged industrial accident but his testimony was merely 

a "rehash" of the testimony presented before the Division. Similar 

testimony met with disapproval in Rasmussen v. Gibson Products Co. 

of Bozeman, Mon t . , 527 P.2d 563, 31 St.Rep. 860. 

claimant's wife also testified before the district court. Her 

testimony was that claimant had experienced pain in his lower back 

on the date of the alleged accident. However, no effort was made 

to determine if the back pains were caused by the alleged accident 

or whether they were the result of claimant's long history of back 

problems. 

We find the other contentions raised by claimant to be 

without merit. The district court erred when it reversed the 

~ivision's findings. The evidence did not clearly preponderate 

against those findings. 

The judgment of the district court is reversed and the cause 

is dismissed. 
We Concur: 

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Justice