300 S.W. 896 | Ky. Ct. App. | 1927
Reversing.
James Collins, who was the husband of appellee, had been employed by appellant for several years before his death. He worked for the appellant in a dual capacity at its coal plant at Tejay, Ky. A portion of the time he worked as a coal loader, and a portion of his time he acted as a peace officer in patrolling the mining camps of appellant. He was a deputy sheriff at the time of his death. On the day that he was killed he was attempting to make an arrest on the premises of appellant when he was shot by one of the offenders and instantly killed.
In October following his death in July, 1923, appellant made a report of his death to the Workmen's Compensation Board. In that report appellant stated that Collins was not an employee of the company at the time of his death. In June, 1924, the appellee made application to the Workmen's Compensation Board for an award in her behalf on account of the death of her husband. In her application she stated that appellant denied liability in whole or in part on the ground that her husband was employed by it to patrol its camp and to keep the peace, and in the discharge of that duty he was *390 killed by another person. In her application she stated that her husband was a deputy sheriff for the special benefit of appellant and was attempting to arrest one McKinley Adams on the premises of appellant in the discharge of his duty when he was shot and killed by Adams. She stated that Adams was engaged in disturbing the peace at the time her husband attempted to arrest him.
A hearing was had on her application before one of the members of the Workmen's Compensation Board on March 17, 1925. At that time an order was entered denying her compensation. The order recited that appellee had failed to meet the burden of proof that the accident resulting in her husband's death arose out of and in the course of his employment.
If any proof was taken at the hearing it is not certified as a part of the record. As the record stands, it appears that compensation was denied on the ground that the application filed by appellee did not show that she was entitled to compensation.
On September 2, 1926, the appellee entered a motion before the Workmen's Compensation Board to reopen the case and to grant her a trial, and in support of the motion she filed a number of affidavits detailing the facts in relation to the employment of her husband at the time of his death. No ground for reopening the case is set out in the motion. The affidavits which were filed with the motion tend to show that appellee was entitled to compensation. There is nothing in the record to show whether the evidence which the affiants stated they would give was presented on the first hearing, and there is nothing to show why the evidence, was not presented at that time. On November 4, 1926, the board overruled the motion to reopen the case.
On November 15, 1926, appellee filed her petition on appeal in the Bell circuit court, and, upon final hearing, the circuit court adjudged that appellee was entitled to compensation at the rate of $12 per week until $4,000 had been paid.
Section 4933, Ky. Stats., authorizes the board, or any of its members, to hear the parties at issue and their representatives and witnesses and to determine the dispute in a summary manner. The award, if made, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the question at issue, *391 shall be filed will the record of the proceedings. The order made by a member of the board in this case shows that the appellee did not establish the fact that her husband was killed in the course of his employment. We cannot disturb the findings of the board or any member thereof on a question of fact where there was any evidence to support the finding. The application filed by appellee before the board briefly detailed the facts relating to the death of her husband, and as there is no evidence in the record given on the hearing before the board, it may be that we should assume that the member of the board decided the matter alone on the facts found in her application.
If one applying for compensation is not satisfied with findings of a member of the board he may make an application for review of the whole board within seven days from the date of the award, and upon such an application it is the duty of the full board to review the evidence, or, if deemed advisable, the full board may hear the parties at issue and their representatives and witnesses and shall make an award and file the same in like manner as specified in section 4933, Ky. Stats. These provisions are found in section 4934, Ky. Stats.
By the provisions of section 4935, Ky. Stats., the award or order by a member of the board as provided in section 4933, or by the board in section 4934, shall be conclusive and binding as to all questions of fact; but either party may within 20 days after the rendition of such final order or award of the board by petition appeal to the circuit court for review of such order or award. In the circuit court no new or additional evidence may be introduced except as to the fraud or misconduct of some person engaged in the administration of the law and affecting the order, ruling, or award. The circuit court must hear the cause upon the record or abstract thereof as certified by the board. The review by the circuit court is limited as provided in the last-mentioned section.
If the order entered by the member of the board did not do justice under the law to appellee, she should have appealed to the circuit court within 20 days after the order was entered, or she may have asked for a review by the full board, and her appeal should then have been taken from the order of the full board, within 20 days after it was entered. This is the construction placed on section 4935, Ky. Stats., in the case of Hollenbach Co. v. Hollenbach,
Moreover, we find no provision in the Statutes specifically allowing an appeal to the circuit court from an order of the board refusing to reopen the case; but the right of appeal in such cases has been approved by this court Wagner Coal Coke Co. v. Gray, Guardian,
Judgment reversed, and cause remanded, with directions to dismiss the petition for appeal.