40 S.W.2d 326 | Ky. Ct. App. | 1931
Affirming.
In a proceeding before the Workmen's Compensation Board, the appellee, Susan Hatfield, was awarded *817
compensation as the dependent widow of her deceased husband, the board finding that his death had been caused by an accident arising out of and in the course of his employment with the appellant. The latter filed in the circuit court a petition for review of the award of the board. While that petition was pending in the circuit court, the appellant and appellee entered into a compromise settlement whereby the appellant paid her the sum of $2,250 in full settlement of her claim and the proceeding in the circuit court was dismissed "settled". Later Mrs. Hatfield brought suit to set aside that settlement on many grounds. The circuit court refused her the relief she sought, but this court, in an opinion to be found in
On the direct appeal, the sole question we have for determination is whether there is any competent and relevant testimony to sustain the finding of the board that the cause of the death of Mrs. Hatfield's husband was an accident which her husband sustained while working for the appellant.
Appellant insists that a great deal of evidence produced by appellee before the Compensation Board was incompetent. In most instances, it interposed no objection to it, and hence cannot complain of it now or in the circuit court. Elkhorn Seam Collieries Co. v. Craft,
Appellee concedes that the circuit court correctly credited the amount due her under the award of the Compensation Board by what she had received in the settlement which proved to be void and which she had retained, *819 as indeed she must. This payment was not one of the character described in section 25 of the Compensation Act, being now section 4906 of the Statutes, but was a payment made to settle a claim which Mrs. Hatfield had against appellant. It is true the settlement is void, but, under the circumstances it was made, appellant would have the right to recover back from the appellee the amount paid her. Such being the case, it has a right to offset the amount due her by that due from her. She insists, though, that the credit should not exceed $1,700, because, out of the $2,250 paid her, she got only $1,700, the other $550 going to her lawyers who represented her before the Compensation Board and the circuit court, and who effected the settlement. The contention is without merit. The whole amount was paid to her by appellant, and what she did with it thereafter was no concern of appellant, nor could it affect appellant's right to recover it back when appellee repudiated the settlement. The payment of her attorneys by her stands on no different footing from any other expenditure she made with the money. The full amount was paid to her by appellant, and she cannot charge it with what she did thereafter with the money. The circuit court did not err in crediting the amount due her from appellant with the full sum of $2,250.
The judgment is affirmed on both the original and cross appeal.