103 S.W.2d 112 | Ky. Ct. App. | 1937
Affirming.
On motion of the Blue Grass Mining Company, the Workmen's Compensation Board allowed it excess medical and hospital expenses in the sum of $725.75, and directed that that amount be credited against the compensation allowed Arthur Stamper. On a full board review the award was affirmed. On petition for review the Perry circuit court set aside the order of the board allowing the credit, and the company appeals.
It first is insisted that the judgment of the circuit court is erroneous because it undertook to reverse a finding of fact made by the Workmen's Compensation Board. Though formerly the rule was otherwise, it now is the law that an employer who voluntarily pays for medical, surgical, and hospital treatment in excess of his statutory liability is not entitled to have the excess credited against the compensation, in the absence of an agreement with the employee. Harvey Coal Corporation v. York,
There is the further contention that the circuit court erred in overruling appellant's motion to dismiss the petition for review on account of lack of jurisdiction. The facts are: The award of the full board was made on October 15, 1935. The petition for review was filed in the office of the clerk of the Perry circuit court on October 29, 1935. On the same day summons was issued to Perry county and also to Franklin county. The process issued to Perry county was served on the president of the company on January 23, 1936. On January 29, 1936, the company filed its motion to dismiss the petition for review, and in support of the motion filed the affidavit of Russell Ingram, deputy sheriff of Perry county, stating that the summons was not delivered to the sheriff's office until January 1, 1936. If it had been made to appear that Stamper or his attorney had taken charge of the summons and failed to deliver it to the sheriff until after the period of limitation had expired, a different question would be presented. Blue Grass Mining Co. v. North,
Judgment affirmed. *646