212 S.W.2d 540 | Ky. Ct. App. | 1948
Affirming in part, reversing in part.
This is an appeal from a judgment of the Harlan Circuit Court affirming an award of the Workmen's Compensation Board against appellant in favor of appellee. The Board had previously confirmed the recommendation of the Referee. The award rendered by the Board and sustained by the Circuit Court allowed appellees compensation at the rate of $12 per week beginning April 21, 1943, for a period of 400 consecutive weeks with interest at 6% on all past due installments from date until paid and allowed appellant credit for $1,477.31; the total amount of compensation to be paid, subject to the credit, not to exceed $4,800, together with $150 funeral expenses of deceased. In its award, the Board, confirmed by the judgment of the court, refused to allow appellant an additional credit in the sum of $1,097.81.
Appellees cross-appeal from so much of said judgment as allows appellant credit for $1,477.31 for money and supplies furnished appellees.
"A reading of many opinions of this court (and others) will demonstrate that an injury occurring while the employee is on the premises does not ipso facto fasten liability on the employer. * * *
"If the accident occurred while the servant was performing the service for which he was employed, the injury arises out of the employment. If the accident occurred within a reasonable time before or after the actual work, and in preparation for departure from the service and the thing done was to the interest of the master or an integral part of the preparation, the injury is held to have been received in the course of employment."
Appellees cite and rely on Codell Construction Co. v. Neal,
"It is a firmly established rule that acts necessary to the comfort and convenience of the employee while at work, though strictly personal to himself and not acts of service, are incidental to the service, and injuries sustained in the performance of such acts are deemed *93 to have arisen out of the employment. In Honnold on Workmen's Compensation, Volume 1, c. 381, it is said:
" 'Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen's Compensation Act, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the Workman is ministering to his personal comfort or necessities, as by warming himself or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.' "
The first appeal to come before this court from an award by the Workmen's Compensation Board was in Phil Hollenbach Co. v. Hollenbach,
"In this case, appellee's injuries may be traced directly to coming into contact with meats laden with tularaemia germs. The time, the place, and the cause of the injury are determinable with reasonable certainty. As immediate results of the contact, symptoms peculiar to the disease manifested themselves. It was not a gradual development arising out of natural dangers incident to the employment, but was sudden, unexpected, and unusual, without any of the distinctive features of an occupational disease."
The case at bar is distinguishable from Jellico Coal Co. v. Adkins,
The item of $1,097.81 was for medical, surgical and hospital treatment as provided in KRS
For the reasons herein indicated, the judgment of the lower court is affirmed in part and reversed in part.