The respondent, Luke Paulich, was an employee of the appellant coal company. The appellant was enrolled under Plan No. 1 of the Workmen's Compensation Act (Rev. Codes 1935, sec. 2970, et seq.), at the time of the industrial injury suffered by respondent. He regularly filed his claim for compensation with the Industrial Accident Board, hereinafter referred to as the board, on November 18, 1931. The claim was contested by appellant and, after hearing, the board on July 28, 1932, granted to respondent 56 weeks of compensation at $19 per week, the board's order being:
"It is therefore ordered and adjudged that the Republic Coal Company pay to Luke Paulich four (4) weeks compensation at the rate of $19.00 per week as a temporary total disability and that it pay to Luke Paulich 52 weeks compensation at the rate of $19.00 per week, in addition thereto, as a permanent partial disability, the payments to date from August 20th, 1931, in full and final settlement of his claims for compensation arising out of alleged injuries of August 1, 1931, August 20th, 1931, and November 7th, 1931.
"It is further ordered and adjudged that Luke Paulich accept 4 weeks compensation at $19.00 per week as a temporary total disability and 52 weeks compensation at the rate of $19.00 per week, in addition thereto, as a permanent partial disability, in full and final settlement of his claims for compensation arising out of his alleged accidental injury on August 1st, 1931, August 20th, 1931, and November 7th, 1931."
From this order respondent appealed to the district court of the Fourteenth Judicial District for the county of Musselshell,
and after hearing on October 11, 1932, the court in its findings affirmed the findings of the board, except that the weekly compensation was raised from $19 to $20 per week, and the date from which payments were to be made was changed to November 7, 1931. This first order on appeal was dated February 9, 1933. Subsequently respondent moved the court to modify its conclusion as to the amount of weekly award, which motion was on March 16, 1933, overruled. Subsequently, and on March 25, 1933, the final order was entered, which recites in conclusion: "That as compensation for his temporary total disability and permanent partial disability he be paid by the said defendant, the sum of $20.00 per week for the period of 56 weeks from November 17th, 1931, and that he accept from said defendant such compensation; that the defendant, Republic Coal Company, is entitled to credit for such sums as have heretofore been paid by them."
It will be noted that the hearing before the district court on appeal was held before the expiration of the 56 weeks included in the judgment. And it is also to be noted that the judgment of the district court does not contain the provision found in the order of the board that the judgment be accepted as a full and final award.
On April 11, 1933, the amount of this judgment, minus credits, together with interest, was paid. Subsequently and after receipt of the amount of the judgment, respondent filed an appeal in this court. (Paulich v. Republic Coal Co., 97 Mont. 224, 33 P.2d 514, 515.) The appeal in this court was dismissed on the ground that the acceptance by respondent of the fruits of the judgment precluded an attack by him on the judgment, the court saying: "Counsel was tendered, and accepted, the fruits of the judgment; this act was inconsistent with the right of appeal; the election of the one necessarily excludes the enjoyment of the other."
On July 12, 1934, respondent filed a petition with the board, under the provisions of section 2956, Revised Codes, which provides in part that the board may, at any time after the date of award, "review, diminish, or increase, within the limits provided by this Act, any compensation awarded upon the grounds
that the disability of the person in whose favor such award was made has either increased (italics ours) or diminished or terminated." In this petition respondent claimed that his disability had been aggravated. After hearing, and on March 4, 1935, the board denied and dismissed the petition, stating in its conclusions: "The board does not believe that Luke Paulich in December of 1934 was suffering any greater disability than he was in 1932 when his claim was originally decided by the Industrial Accident Board. The evidence of his own expert physician is positive that his condition is the same and the only exception the doctor makes is that he [the doctor] rated the claimant at too low a percentage at the time of the original examination. The petition of Luke Paulich for an award of an additional and further compensation is therefore denied and dismissed."
From this order respondent appealed to the district court and, after trial and hearing, that court on September 13, 1935, sustained the board. In its findings of fact the court recites: "The said claimant on July 12th, 1934, petitioned the Industrial Accident Board to make a further and additional award upon the ground that the disability due to said industrial accident hadvery materially increased (italics ours) since the hearing before the Industrial Accident Board." In this finding, in speaking of the order of the board, the court said: "[It] made its decision and order dismissing and denying the petition of claimant for an award of additional and further compensation on the ground that said claimant was suffering no greater degree of disability from said accidents than at the time of the first hearing before the Industrial Accident Board." The court found in its findings that Paulich was suffering no greater degree of disability and sustained the board. In its judgment it recites in part: "Luke Paulich is not entitled to recover any other or further compensation from said defendant."
It is to be noted that this later petition was acted on prior to the decision in Lunardello v. Republic Coal Co., 101 Mont. 94,53 P.2d 87, which was determined in this court on December 19, 1935, and the decision in Meznarich v. RepublicCoal Co., 101 Mont. 78, 53 P.2d 82, decided on December
12, 1935. No appeal was perfected from the judgment of the district court.
On November 19, 1936, respondent filed with the board a petition denominated "Petition for Hearing for Determination of Disability and Order Directing Payment of Additional Compensation in accordance with the Judgment and Order of the District Court of Date March 28, 1933." By this petition respondent sought to have the period of payment of weekly compensation extended to the maximum allowed by the statute, claiming that his disability continued after the date of the judgment of March 28, 1933. He did not claim a changed condition in this petition, as he did in the petition of July 12, 1934.
To this last petition appellant filed its answer, and to this answer respondent filed a reply. On May 24, 1937, the board, without a hearing and without taking any testimony, denied and dismissed this petition, basing its action on the theory that the board had no jurisdiction to grant the relief sought. The board took the view that the petition was one seeking to enforce an order of the court. The board states in its conclusions: "The petition now before the board * * * to enforce a court order and is not one alleging an increase in the disability. The board therefore has no jurisdiction."
Subsequently respondent filed an application for rehearing, which was denied. He then appealed to the district court of the Fourteenth Judicial District from the order of the board dismissing his petition and his application for rehearing. The appeal was heard by the court below on December 10, 1937. At that hearing respondent moved the court for leave to introduce testimony in addition to that introduced before the board, for the reason that it was necessary to bring the facts of the case down to the time of the hearing before the court. Appellant objected to the consideration of the matter, except as a matter of review only, and this objection was by the court overruled, and witnesses were examined and proof heard. Judgment in favor of respondent was given on July 16, 1938, in the sum of $5,341. According to the judgment, this sum was computed on the basis of the total amount of compensation from and after the 3d day of December, 1932, the date of the first hearing
before the district court, in which the original award was made to the respondent to and including June 28, 1938, as a lump sum payment of all accumulated amounts due. It is from that judgment that this appeal is taken.
Two primary questions are presented to this court by this appeal. The first question that must be determined is: Did the board have jurisdiction to hear the petition of respondent? And, second: Did the court proceed properly and within its powers when it heard the matter on appeal as it did?
In order to answer the first question, it is first necessary to examine what had transpired in this particular matter prior to the filing of the last petition.
It is argued that the acceptance by Paulich of the fruits of[1] the first judgment renders that judgment conclusive and that now Paulich is not in a position to seek further payments based in any manner upon that original judgment. It is true that so far as the period covered by the compensation accepted is concerned, the judgment is conclusive on respondent and he cannot now question it. (Paulich v. Republic Coal Co., supra; Shugg v.Anaconda Copper Min. Co., 100 Mont. 159, 46 P.2d 435.) But as to the period not covered by the award of compensation, and the compensation accepted by respondent, the judgment is not conclusive. (Meznarich v. Republic Coal Co., supra.)
To hold as appellant contends, would nullify the provisions of our Code, sections 2952 and 2956, providing for continuing jurisdiction on the part of the board to take care of those situations where the claimant accepted the full amount of the award and later discovered that his disability continued. His acceptance of the weekly award, or the total of the weekly awards, could not bar his application for additional compensation based on continuing disability.
It is then argued by appellant that the judgment of September 13, 1935, based on the petition of respondent, for additional compensation, on the theory that his condition as to disability had increased, is res judicata. As has been indicated heretofore, that petition was based on the provisions of section 2956, which provides that additional compensation may be
awarded where it is shown that the disability of the person in whose favor the award is made has increased. Prior to theMeznarich and Lunardello Cases, supra, it was generally understood that under the Montana statutes the award, when made in a final sum, precluded the recovery of any additional compensation in excess of the total contemplated by the judgment, unless there was a showing that the disability had increased. It was on that theory that the second petition was filed, and on that theory alone, as evidenced by the conclusions of both the board and the district court, that the matter was determined. (Shugg v. Anaconda Copper Min. Co., supra.) The judgment of September 13, 1935, is res judicata only as to the matter then considered, and then determined, namely, that the disability of respondent had not increased or become aggravated.
We have heretofore quoted the language of the conclusions of the board and of the court, which in effect are that the respondent's disability was the same at the time of the hearing on the second petition as it was at the time of the original award, and they specifically hold that his disability has not been aggravated, and his petition was denied solely on that ground.
The present petition is based upon an entirely different theory from the second petition, and although the language of the court is broad in denying the petition and dismissing it, yet it is apparent from a casual reading of the findings and conclusions that the only thing considered by the board and by the court was the question of increased disability, and it is only as to that matter that the judgment is res judicata.
That the board has jurisdiction to entertain the petition and[2] grant the hearing is settled by the two recent cases heretofore cited — Meznarich v. Republic Coal Co., andLunardello v. Republic Coal Co., supra. Section 2952, Revised Codes, provides: "The board shall have continuing jurisdiction over all its orders, decisions and awards, and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter, or amend any such order, decision or award made by it upon good cause appearing therefor. Provided, that the board shall not have power to rescind, alter, or amend any final settlement or award of compensation more than
two years after the same has been made, and provided further that the board shall not have the power to rescind, alter or amend any order approving a full and final compromise settlement of compensation. Any order, decision, or award rescinding, altering, or amending a prior order, decision, or award, shall have the same effect as original orders or awards."
In construing this section and sections 2912 et seq., the court in the Lunardello Case said: "Plaintiff is correct in his contention that after a type of disability has been finally ascertained, whether it be temporary-partial, temporary-total, permanent-partial, or permanent-total, payments must be made during the continuance of the disability, not exceeding the maximum time, in accordance with the law and as prescribed therein for the particular type of disability involved. It is not necessary that the total allowance all be included in one order, or all be made at one time; what we mean to say is that no order may be considered as full allowance unless the maximum is contemplated and included therein, and even then such order and allowance must still be subject to modification or change under the continuing jurisdiction of the board."
And in the Meznarich Case the court said: "The mere fact, then, that the board purported to make the order of December 19, 1931, `final,' is of no force or effect, as that provision of the order was in contravention of the statutes vesting power in the board, and the board could not thus divest itself of the continued jurisdiction vested in it by the Act." (101 Mont. 78,53 P.2d 85.) And further the court said: "As our Act, in common with those in other jurisdictions, declares in each instance with respect to the several classifications of disability, that the weekly compensation fixed under the particular section shall be paid `during the period of disability,' a claimant's rights are limited only by the declaration of the legislature as to the maximum number of weeks fixed by it as a limit."
It is to be noted that in the two cases last cited the order fixing the number of weeks of compensation to be allowed, recited that the order was full and final, while in the present case, although the order of the board on the first petition was in that language, the judgment of the district court on appeal from the
first order of the board significantly left out the provision that the award be full and final settlement of respondent's claim for compensation. On the authority of the last two cases cited, the board did have jurisdiction to grant the respondent the leave prayed for in his petition, and it should, therefore, have granted the hearing. Inferentially the district court so ruled in the decision appealed from, and its holding that respondent was entitled to compensation included within it a holding that the board had jurisdiction to hear the petition.
Appellant urges that the court erred in proceeding with the[3] hearing on appeal. It argues that if it should be held that the former judgments heretofore discussed were not a bar to this petition, then all that the district court could do would be to dismiss the petition, or, at most, send it back to the board with direction to hold a hearing. This court has indirectly considered the problem presented by this argument on a number of occasions. On at least two different occasions this court affirmed the lower court where it proceeded exactly as here.
In Nicholson v. Roundup Coal Min. Co., 79 Mont. 358,257 P. 270, 271, the proceeding before the board and in the district court was very much the same as in this case. There a petition was filed with the board in which the widow of a deceased workman sought to have his death declared to be due to an industrial accident, and to secure an allowance of compensation. With the petition were filed various exhibits. The defendant answered and accompanied its answer with certain affidavits of physicians and other persons. These affidavits stated that the workman died of heart failure — a natural cause. The board, after receiving these various instruments, refused to grant a hearing and dismissed the claim. In that case the board in effect said in denying the hearing that the application, answer and various exhibits attached to the two pleadings, demonstrated that there was no industrial accident and, therefore, there was nothing for the board to determine, i.e., that the petition and answer revealed no jurisdictional facts upon which the board could proceed. In the present case, the board says that the judgments filed with the answer show this same lack of jurisdictional facts, and, therefore, the board denied the petition here.
In the Nicholson Case, supra, on appeal the district court proceeded as here, heard evidence and found for the defendant. This court, in stating the facts in its opinion, said: "And, on the trial, the court permitted each party to introduce oral testimony on all questions involved, so that the court had before it a complete case, independent of the showing made to the board." The lower court in its order cited Willis v. PilotButte Min. Co., 58 Mont. 26, 190 P. 124, to the effect that the power of the district court is that of review rather than that of retrial. This court in reversing the district court in the Nicholson Case said: "The board held no hearing and, in effect, disposed of the claim as on a motion for judgment on the pleadings on questions of law, although the pleadings raised an issue as to whether decedent's death was caused by accident or resulted from natural causes, and, in order to arrive at its decision, the board must have taken into consideration the ex parte showing made by the company. The board's decision on a question of law stands in a very different situation from its findings of fact based on evidence received at a hearing. The rule invoked does not apply to decisions on questions of law, and has application only to those appeals determined on the `cold record' certified to the court by the board, as pointed out in the Morgan Case [Morgan v. Butte etc. Min. Co., 58 Mont. [633], 641, 194 P. 496] referred to; it is not controlling in cases in which the court permits additional testimony, and has no application when the additional testimony shows fact conditions differing from those presented to the board. On all appeals in which the court permits such additional testimony, the trial is a re-examination in the nature of a review, so far as the record made before the board is concerned, but, as the additional testimony was not before the board, the trial is de novo as to such additional evidence. (Dosen v. East Butte Copper Min.Co., 78 Mont. 579, 254 P. 880; Novak v. Industrial Acc.Board, 73 Mont. 196, 235 P. 754.) The court should have considered all of the evidence adduced, and determined the questions presented on appeal according to the law and the evidence."
In the case of Novak v. Industrial Accident Board, supra, claimant filed his claim together with the doctors' reports,
etc. It is apparent that some considerable investigation was made by the board. Without holding a hearing the board allowed compensation, but the claimant on appeal contended that the award was not sufficient. In the opinion the court said: "Owing to the condition [the fact that no hearing was had], the court permitted Novak to introduce oral testimony, under authority of section 2960, Revised Codes of 1921." And further: "As there were no findings of the board for review, this being an appeal from an order denying a hearing and not from the findings, conclusions, and judgment of the board after hearing, the court made its independent findings," based on the evidence adduced for the first time before the court. The judgment of the district court was affirmed. We, then, have two Montana cases in which this court affirmed the lower court where it did what appellant complains of here. The right of the district court to proceed as it did in the Nicholson and Novak Cases was apparently not contested nor argued, and, therefore, the court did not directly pass on its right to hear evidence where there was no hearing below. However, the court assumed in those two cases that the district court had that power, and, we think, correctly so.
In discussing the field of inquiry in the district court on appeal from an order of the board after hearing, this court said in Dosen v. East Butte Copper Min. Co., supra: "Terminology here is of little moment. The trial is a re-examination and redetermination in any and every event. If upon the record of the board, the re-examination is in the nature of review, but the court must render its own judgment. If the court permits additional evidence to be introduced, the trial proceeds upon a consideration of the evidence heard before the board, and that which the court permits in addition thereto. To that extent the trial is de novo. The court is given a wide discretion in the matter. Whenever the Compensation Act, or any part or section of it, is interpreted by the court, it shall be liberally construed. (Sec. 2964, Rev. Codes.) Both parties to the action or proceeding shall have the right to appear in the district court and it shall be the duty of the board to appear. If the court shall find upon the trial that — `the findings and conclusions of the board
are not in accordance with either the facts or the law, or that they ought to be other or different [from] those made by the board, or that any finding and conclusion, or any order, rule, or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises.' (Sec. 2961, Rev. Codes 1921.) The intention of the law is that the court shall do full and complete justice to all concerned, so far as it may be possible to do so within the limitations of the statute."
The attitude of this court as expressed in the Dosen Case, supra, when considered in the light of the Nicholson and NovakCases, supra, seems to be that in determining to what extent the district court will go in hearing matters not presented before the board, it has a wide discretion, and in determining its action the district court should be guided by the rule that it should do full and complete justice to all concerned. In other words, that the lower court should dispose of the matter completely on the appeal if it is at all possible.
Appellant relies to a great degree on Willis v. Pilot ButteMin. Co., supra, which case was decided prior to the decision in the Nicholson, Novak and Dosen Cases, supra. In none of the cases cited by counsel is there one that directly holds, and only one that impliedly holds, that where there was no hearing before the board, the district court on appeal cannot admit testimony and hear and finally determine the matter. Most of the cases cited, like Doty v. Industrial Accident Fund, 102 Mont. 511,59 P.2d 783, Rom v. Republic Coal Co., 94 Mont. 250,22 P.2d 161, and many others, consider only the problem of the powers of the district court on appeal where there was a hearing before the board. They are directed to the problem of the weight to be given the findings of the board on the evidence before it. They are concerned, also, to some degree, with the extent to which the district court should permit additional testimony, but on this point they all hold uniformly that that is
a matter entirely within the discretion of the district court. In discussing the matter of review and retrial, they are concerned with the problem of the functioning of the district court, i.e., should the district court hear the matter entirely de novo, even on a cold record, and indulge in no presumption as to the correctness of the finding of the board? This court in passing on that question has said that where the matter is heard entirely upon the record before the board, the proceedings are in the nature of a review only, but that where additional important testimony is adduced, then the matter is considered one of retrial, and the rules as to presumptions of the correctness of the board's finding do not obtain. (Kelly v. West Coast Const.Co., 106 Mont. 463, 78 P.2d 1078.)
This court has indicated and held that the district court is not precluded from admitting testimony through the same witnesses and on the same matters that were testified to before the board, and in the Kelly Case, supra, it said that where the testimony so adduced is important and differs in any degree from the testimony adduced before the board on the same matters, the record of the board may be disregarded.
Appellant cites the case of Shugg v. Anaconda Copper Min.Co., cited supra, and urges particularly the language in that case found on page 168 of 100 Mont., on page 439 of 46 P.2d as follows: "If it be conceded that the petition to reopen the case states facts sufficient to invoke the continuing jurisdiction of the board, the appeal here taken was an inappropriate method of attempting to have the changed condition of the injured party determined. Original jurisdiction to determine all questions of fact with respect to awards of compensation is vested in the board (sec. 2947, Rev. Codes 1921), and the board has never heard or determined the question as to whether or not new developments in the claimant's condition warrants further award of compensation. The board only determined the preliminary question of law as to jurisdiction, and refused to act; it would seem, therefore, that the proper remedy would have been mandamus to compel the board to act (State ex rel.Loney v. Industrial Accident Board, 87 Mont. 191,286 P. 408), for
the power of the court on appeal is that of review to determine `whether or not the findings of the board ought to be sustained, and whether or not such findings are reasonable under all the circumstances of the case.' (Sec. 2960, Rev. Codes 1921; Willis
v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124.) Here there was nothing for the court to review; it was called upon to, and did, hear the case de novo, but then decided that it was without jurisdiction to determine the matter of which it has thus assumed original jurisdiction."
An examination of the above case indicates that what is there said is by way of dictum, and we agree that ordinarily the proper course to pursue, and the orderly one, is that indicated in the portion of that case quoted above. However, we feel that the provisions of section 2961, Revised Codes, indicate that the legislature had in mind the granting of very broad powers to the district court on appeal. "The board and each party to the action or proceeding before the board shall have the right to appear in the proceeding, and it shall be the duty of the board to so appear. If the court shall find from such trial, as aforesaid, that the findings and conclusions of the board are not in accordance with either the facts or the law, or that they ought to be other or different than those made by the board, or that any finding and conclusion, or any order, rule, or requirement of the board is unreasonable, the court shall set aside such finding, conclusion, order, judgment, decree, rule, or requirement of said board, or shall modify or change the same as law and justice shall require, and the court shall also make and enter any finding, conclusion, order or judgment that shall be required, or shall be legal and proper in the premises."
The statutory provisions as to procedure contemplate without doubt that upon the filing of a petition the board ordinarily shall grant a hearing and be the trier of the facts in the first instance. But this latter section of the statute seems to express rather plainly the will of the legislature that even where the board fails to hold a hearing, on appeal the district court may proceed and determine the matter at once. (See the quotation fromDosen v. East Butte Copper Co., supra.) We would like to repeat particularly that portion of the quotation from that
opinion which reads: "The intention of the law is that the court shall do full and complete justice to all concerned, so far as it may be possible to do so within the limitations of the statute."
Were it not for section 2961, the limitations of the statute would prevent determination of the matter finally, as was done by the lower court here, in the absence of a hearing before the board; but the language of section 2961, when considered in the light of the other statutory provisions, certainly does not prohibit the final determination of the matter before the district court, but rather seems to command it.
Even though we should hold that the Shugg Case, supra, is controlling on the matter of procedure, there are additional reasons why the lower court must be affirmed, particularly as to the matter of its action in proceeding to hear the case after determining the legal question. The appellant introduced in evidence the various orders and judgments on which it based its technical defense. The first judgment so introduced recites the fact that respondent suffered an industrial accident, and that the injury was a permanent partial one. The second judgment offered by appellant, and the accompanying order of the board, recite that respondent was at that time suffering the same permanent partial disability, and that his condition was the same as it was on the date of the first judgment. Appellant, then, by its own evidence, admits that for two years or more, covered by this last petition now before the court, respondent's condition was what he alleged it to be, namely: That his disability continued as it was at the time of the original judgment. As to the period subsequent to the second judgment, respondent testified as to his condition and earning power, and was cross-examined by appellant; but appellant offered no testimony in rebuttal. It offered no testimony that for that period respondent was not in fact disabled, or that his disability was any less than he testified it to be. Appellant submitted findings of fact but none to the effect that respondent's disability did not exist as he alleged and testified, nor that it was not the same as the court found it to be in the first and second judgments.
We are then presented with the situation where there is no[4, 5] substantial dispute as to the facts. Therefore there would be nothing for the board to decide if the matter were sent back to it for a hearing. That situation makes applicable the language of this court in the very recent case of Halko v.Anderson, 108 Mont. 588, 93 P.2d 956, 959. The action there was to quiet title to certain real property in the possession of defendant. He was entitled, as a matter of law, to a trial of the issues before a jury. Although he objected, the court proceeded to hear the matter without a jury, and upon the trial it developed from defendant's own testimony that he had no defense to the action. This court said: "It is well established that a judgment will not be reversed for harmless error. * * * A judgment will not be reversed to grant the losing party the abstract right of a trial by jury when the record discloses nothing for the jury to determine. (Hahn v. Shaubut, 45 Mont. 326,123 P. 694.)" In this latter case, Hahn v. Shaubut, supra, the court said: "So far as the record presented to us discloses, the defendant had no defense to the action. He could not refuse to offer proof of the affirmative allegations of his answer, and then claim a purely abstract right to a trial by jury after having admitted all of the allegations of the complaint. It was his duty to make the record disclose prejudicial error. Such is the rule in this state. * * * So far as we know, he has suffered no prejudice whatever."
We believe the rule so announced is applicable here. Appellant relied entirely upon the legal effect of the former judgments, and did not offer any evidence that would reveal that it had a defense if the matter were sent to the court below. Before appellant could place the district court in error, it was its duty to make the record show by some testimony that it had been prejudiced by the court's action by proceeding to hear the whole matter, instead of sending it back to the board. This appellant has not done. See, also, State v. Byrd, 41 Mont. 585,111 P. 407, 411, where the court said: "It is for this court to determine whether an error affects the substantial rights of the defendant. * * * but it is the duty of the defendant who
claims prejudice to make the record so show." It may also be noted in passing that the rule of stare decisis in view of theNicholson and Novak Cases, supra, should properly be applied. (See 7 R.C.L., sec. 30, and Palmer v. Harris, 23 Okla. 500,505, 101 P. 852, 138 Am. St. Rep. 822.)
In view of what we have said as to the matters adjudicated in[6] the second judgment, and in view of the holding of this court in the Meznarich and Lunardello Cases, supra, we do not see how this petition and appeal to the district court can be a collateral attack on the order of the board or the judgment of the court in either the first or the second proceedings, and we find no basis for the argument that the petition and appeal constitute a collateral attack, contrary to the provisions of section 2954, Revised Codes.
Error is predicated by appellant upon the admission in[7] evidence of certain X-ray pictures and a report of Dr. E.M. Porter. These pictures and letters were for the purpose of showing respondent's physical condition. Dr. Porter did not testify, nor was there any deposition or affidavit produced covering these matters. Error, even where conclusively shown to have been committed, is not necessarily presumed to have been prejudicial. That is especially true here, where the matter was heard before the court and where there was other ample undisputed testimony to sustain the findings of the court. (Hill v.Chappel Brothers of Montana, 97 Mont. 305, 33 P.2d 819;Noyes' Estate v. Granite-Alaska Co., 64 Mont. 406,210 P. 96; Yergy v. Helena L. Ry. Co., 39 Mont. 213, 102 P. 310, 18 Ann. Cas. 1201.)
The evidence objected to, even though it might have been objectionable, was not prejudicial and its admission furnishes no ground for reversal. (Backer v. Parker-Morelli-Barclay MotorCo., 87 Mont. 595, 289 P. 571; Dockins v. Dockins,82 Mont. 218, 266 P. 398.)
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE ANGSTMAN concur.