(dissenting).
I realize that dissenting opinions are generally of little value. Their office is primarily to voice the exasperation of the author, *578because his views have not prevailed, rather than to add to the body of the law. In other words I agree that perhaps my views here are better omitted than written. But they depart so widely from the conclusions upon which the majority of this court have agreed that the temptation to detail the reasons for my disagreement is too strong for me to resist.
But one question was disputed before the board and the lower court, viz., whether R. C. M. 1947, sec. 92-601, which requires the presentation of claims for compensation under the Act “within twelve months from the date of the happening of the accident”, bars a recovery by the claimant. The board and the district court answered this question in the affirmative.
The controlling facts are not seriously in dispute. That is, as I view the record our understanding of the case is not blurred by conflicting testimony.
"With this background in mind I am first met with the contention that section 92-601, supra, must be liberally construed. As applied to this record I believe that this statute requires no construction. On its face the claimant is barred and recovery by him must be denied, because his claim was presented more than fourteen months “from the date of the happening of the accident”. Conversely, this claim must be denied, when measured by the language of the statute alone, because it was not presented “within twelve months from the date of the happening of the accident”.
Thus far there is no problem of construction presented for solution. The sole problem is to apply this statute as written to the facts before me. It is clear, unambiguous, certain in its meaning. We may not rewrite its text. Sheridan County Electric Co-op, Inc., v. Montana-Dakota Utilities Co., Mont., 270 Pac. (2d) 742, 744; State ex rel. Westlake v. District Court, 119 Mont. 222, 233, 234, 173 Pac. (2d) 896, 169 A. L. R. 827; State v. Holt, 121 Mont. 459, 481, 194 Pac. (2d) 651; Vaughn & Ragsdale Co., Inc., v. State Board of Equalization, 109 Mont. 52, 57, 58, 96 Pac. (2d) 420; Green v. City of Roundup, 117 *579Mont. 249, 252, 157 Pac. (2d) 1010; R. C. M. 1947, sec. 93-401-15.
Here then we come directly to the ground upon which the majority of the court have ruled that section 92-601, supra, is inapplicable, and that.accordingly a recovery may be had by Levo upon the theory of an equitable estoppel raised against the employer and the insurer, which denies them the right to plead this statute in bar. I wholly disagree with this conclusion.
If an equitable estoppel exists in this case it must stand upon the record before us of two conversations and nothing more: (1) The one between the witness Duffy, who was Levo’s friend and agent at the moment,' and the witness Hord, who was the employer’s personnel or assistant project manager; and (2) the other between Levo himself and the witness Daniel J. Korn, his attorney at the time and his cousin at all times. These facts are not in dispute.
Duffy went to Hord for the claimant Levo to get claim blanks and to find out about compensation. He testified on direct examination that Hord said, “Jim, that doesn’t come under compensation; nothing we can do about this; there is no accident about this.” When Duffy asked “him again for the blanks” Hord’s reply was, “* * * won’t do any good, just a waste of time monkeying with them. ’ ’ On cross-examination, Duffy summarized his talk with Hord thus, “We, he told me right then and there Art’s case was not covered by compensation, that was no accident, this compensation only covers accidents.”
Hord on the stand agreed that Duffy’s account of this conversation was “very close to correct”, but added on his part without denial (1) that Duffy at no time represented himself to be Levo’s agent in the matter, (2) that claim forms were not kept in any of the “company offices other than the first aid station”, and (3) that he never refused to give Duffy “compensation blanks whereby Mr. Levo could file a claim.” Duffy’s own account of what Hord actually said, which is quoted above, I repeat, does not contradict Hord at any point; and there were no other witnesses to this conversation than the two participants.
*580Nor is it denied that Dnffy was not satisfied with what Hord told him. Rather he admits other inquiries made after his talk with Hord of persons who told him that there was coverage ‘ ‘ regardless whether it was a heart attack when they worked, should be allowed.” One of these persons was A1 Royce, the employer’s electrical superintendent and the claimant Levo’s immediate superior on the job, who told Duffy pointblank, “It has always been my idea when a man was knocked out on the job with a heart attack he was covered.”
Duffy told the claimant the “substance of the conversation” with Hord. The record is silent whether he also told Levo of his other inquiries, particularly of his conversation with Royce. There is no doubt, however, that Duffy as Levo’s agent and Levo as well were charged with notice that opinions differed radically upon the correct answer to the question whether Levo’s case was compensable. And there is no doubt also on the record that the claimant Levo himself was not content with Duffy’s report. For he testified that he was not satisfied, and that accordingly he sent for his cousin Daniel J. Korn, an attorney, whom he wanted to draw some papers for him, because the doctor had said he “might be alive today and dead tomorrow.”
Korn told the claimant (as is the testimony most favorable to him) that “heart attacks were not covered by compensation”, that “he knew it wasn’t covered by compensation because he happened to be a company lawyer”, that “not a thing” could be done about compensation, that “there isn’t a thing in the world, just one of those things. Too damn bad nothing we could do about it. ’ ’
These conversations all occurred within a month, or thereabouts, after Levo’s injury.
There is no intimation in any of these conversations that either Hord or Korn promised or offered or undertook to act in any way for Levo in connection with the filing of a claim by him for his disability. He was- not misled by either Hord or Korn in any particular. They merely expressed their opinion at the mo*581ment, an opinion then undoubtedly shared by one out of every two lawyers at the Montana bar.
Affirmatively the record shows further, likewise without contradiction, that Korn had been consulted on occasion by the employer about several matters, that he had been paid for his services on a fee basis, but had never had any general retainer. He had never acted for the employer in any compensation case. There is no evidence at all that Korn ever had any authority, actual or ostensible, R. C. M. 1947, sections 2-123, 2-124, 2-106; Lindblom v. Employers’ Liability Assurance Corp., 88 Mont. 488, 295 Pac. 1007; Hartt v. Jahn, 59 Mont. 173, 182, 196 Pac. 153, to represent or speak for either the employer or the insurer in dealing with Levo, or for that matter with anyone, or that Korn assumed any such authority in his talks with Levo, or otherwise. The distinction here is not as the majority puts it between a lawyer “on a retainer” and a “mere fee lawyer”. Rather the undisputed fact is that Korn was neither the lawyer nor the agent of either the employer or the insurer, and that he could not bind either by anything he said whether to Levo or to anyone else.
All the evidence is that the claimant consulted Korn as his own personal attorney to get Korn’s opinion upon a question of law, and that he did so with the knowledge Korn had acted as attorney for the employer, a disclosure which Korn frankly made such that Levo could not be misled in any degree. Far from deception practiced here we have the converse: an honest effort made that he (Korn) be not misunderstood. He was not. Nothing that Korn said or did flies in the face of any ethical standard recognized by the profession. To the contrary Korn complied meticulously with the highest ethics of his profession. Even so, I emphasize, neither the employer nor the insurer was in any way responsible for what Korn told Levo. In my opinion this conclusion as a matter of law drawn from this record cannot be avoided.
The evidence is all one way that Levo consulted Korn upon his own initiative to get Korn’s opinion upon a question of law, *582that he asked for that opinion and got it with the knowledge that Korn had acted also as attorney for the employer.
Specifically, Korn’s statement to which Levo and his witness testified that he was “a company lawyer” or “the company lawyer” is no evidence at all against either the employer or the insurer of his authority to speak for either. Phelps v. Union Central Life Insurance Co., 105 Mont. 195, 199, 200, 71 Pac. (2d) 887; Annotations at 3 A. L. R. (2d) 598, 602 et seq.
But I do not rest my dissent alone upon any want of authority in Korn to bind the employer or the insurer. I disagree fundamentally with the majority upon the broad ground that the record here raises no equitable estoppel of any kind as such an estoppel is known to the law.
Lindblom v. Employers’ Liability Assurance Corp., supra, which is the classic authority in this court defining the doctrine of equitable estoppel, is but a restatement of the rule elaborated in Waddell v. School District No. 2, 74 Mont. 91, 238 Pac. 884; and both of these decisions are only judicial applications of our controlling statute, R. C. M. 1947, sec. 93-1301-6, subd. 3.
Within the rule there laid down the facts here, as I read the record, do not raise an equitable estoppel, primarily, because neither Hord nor Korn made any representation of, nor did either conceal, any material fact, whether by what they did, or said, or by their silence. True, they gave their opinions of the law applicable to Levo’s case, but nothing more. And an opinion by lawyer or layman honestly given upon request is not yet an adequate foundation upon which to build an estoppel. I hold to this view without reference to the question of Korn’s authority vel non to speak for either the employer or the insurer. Ross v. Commissioner, 1 Cir., 169 F. (2d) 483, 496, 7 A. L. R. (2d) 719; Brumit v. Mutual Life Insurance Co., 178 Tenn. 48, 52, 53, 156 S. W. (2d) 377; Robbins v. Law, 48 Cal. App. 555, 560, 192 Pac. 118; Chicago, etc., Ry. Co. v. Sawyer, 176 Okl. 446, 447, 448, 56 Pac. (2d) 418; Turner v. Spokane County, 150 Wash. 524, 527, 528, 273 Pac. 959, and cases cited; Thomas v. Modern Woodmen of America, 218 Mo. App. 10, 18, 19, 260 S. W. 552; *583Ward v. Ward, C. C. N. Y., 131 F. 946, 953, 954, affirmed 2 Cir., 145 F. 1023. Compare Continental Supply Co. v. White, 92 Mont. 254, 270, 12 Pac. (2d) 569.
Again, the estoppel here asserted fails because neither Hord nor Korn knew any fact connected with Levo’s case, which was unknown to Levo. Indeed, the evidence is all the other way that Levo knew more about his injury and its serious consequences certainly than Korn or Hord, whose opinions are the heart of the estoppel claimed; and, if their opinions were to be construed as statements of fact, there is no line of evidence to show that they or anyone for that matter knew they were not true. Here even Levo in his brief in this court concedes there was no bad faith; and, while actual fraud may not be an element indispensable to the existence of an equitable estoppel, knowledge of the truth contrary to his statement by the party estopped clearly is; or, what is the same thing, the party estopped must know (a) the truth of the fact stated, or (b) circumstances such that knowledge of the truth of that fact is necessarily imputed to him, but unknown to the other party. Lindblom v. Employer’s Liability Assurance Corp., supra; Waddell v. School District No. 2, supra. No such case is made here, for neither Korn nor Hord could have acted in good faith (as is admitted) in making the statements they did, if they had known or believed as a fact that Levo’s injury was compensable. Clearly on this record they did not have that knowledge or belief.
I could go further with my analysis of this evidence to show that at other points it does not measure up to the rule recognized in Montana, and generally elsewhere. See Twonko v. Rome Brass & Copper Co., 224 N. Y. 263, 120 N. E. 638. To do so would, however, needlessly extend my dissent. There remain for consideration briefly only the decisions in McCoy v. Mike Horse Min. & Mill Co., 126 Mont. 435, 252 Pac. (2d) 1036. and Great American Indemnity Co. v. Britton, 86 U. S. App. D. C. 44, 179 F. (2d) 60, to which the majority turn for support in their conclusion that an estoppel is raised in this case.
In the McCoy case the claimant for more than a year after his *584injury did not know whether his condition was due to his injury or to advancing age despite examinations made by the doctors to whom he was sent for treatment. Levo’s case presents a state of fact squarely the opposite. He knew within a month after his injury its nature and the disability he had suffered.
In the McCoy case [126 Mont. 435, 252 Pac. (2d) 1039] a shift boss of the employer told the claimant he ‘ ‘ ‘ ought to go to the accident board and fill out papers, report it to the accident board.’ ” The claimant then testified, “* * * I just told my shift boss about getting hurt and he said he would report it.” There is no testimony at bar remotely corresponding to this evidence in the McCoy record. That decision does not support the conclusion which the majority have reached as I understand it.
A sufficient answer to the Britton citation as authority at bar for Levo is found in its facts and in its own comment upon Kobilkin v. Pillsbury, 9 Cir., 103 F. (2d) 667, which, as I read the opinion there, squáres at every corner with my conclusions on this appeal.
I would affirm the judgment below and the board’s order denying Levo compensation.