Ashland Iron & Mining Co. v. McDaniel

• Decision Date: 12 February 1924
• Citation: 202 Ky. 19
• Parties: Ashland Iron & Mining Company v. McDaniel, et al.
• Court: Kentucky Court of Appeals

202 Ky. 19

Ashland Iron & Mining Company v. McDaniel, et al.

Court of Appeals of Kentucky.

Decided February 12, 1924.

Appeal from Boyd Circuit Court.

ROBERT T. CALDWELL and H. VAN ANTDERP, JR., for appellant.

JAMES B. ADAMSON, W. D. O'NEAL and DYSARD & MILLER for appellees.

OPINION OF THE COURT BY JUDGE McCANDLESS — Affirming.

A. C. McDaniel, a youth 18 years of age, was one of a party of four known as the "gin gang" engaged in moving dolomite barrels from a point on the upper floor of appellant's mill to a point on the ground floor. A traveling crane operated by an employe sitting in a cage would be run to a point over the barrels, and the "gang" would enclose the barrel in a rope sling and attach this to the crane hooks, whereupon the craneman would elevate the load and run the crane to the east end of the building over a rectangular opening in the floor known as the "pit," which was enclosed by a railing called the "cage," and would then lower the barrel through this pit 27 feet to the ground below. The "gang" would walk down a stairway provided for the purpose and release the barrel and roll it to its place and then return up the stairway for another, the rope being left attached to the crane which was also elevated and returned.

There were notices posted in the craneman's cage and at some other places in the building forbidding workmen hanging on the crane ropes. McDaniel had been engaged at the work for five or six months and it seems occasionally violated this rule and had been corrected for it a month or so previous to the day of the injury.

On that day, after delivering one of the barrels on the ground floor, instead of walking back up the stairway, he held to the rope and was elevated to the floor above in safety. On the ensuing trip each of the "gang" took hold of the rope, but as the crane started to ascend, all but McDaniel let loose and he was elevated as before, the other three using the stairway.

It appears that the craneman could not see him until he reached almost to the railing around the cage. At that time there was some excitement among the others, who shouted to let him down. McDaniel himself made an outcry but it was rather in a bantering sort of way; the noise of the mill prevented the craneman from hearing them and he undertook to elevate the crane sufficiently for McDaniel to pass over the rails, but the rope was so long that he was unable to do this and in the attempt the blocks of the crane were brought together and either broke the electric wire by which they were attached or formed a short circuit by which it was burned, causing both McDaniel and the blocks to fall into the pit, the blocks falling on him and fracturing his leg. An operation was performed but he died shortly thereafter.

A claim was filed by his dependents before the workmen's compensation board seeking compensation therefor. This was resisted by the company on the theory that the injury was the result of a "sportive" act or was due to the wilful misconduct of decedent, and did not arise out of or in the course of his employment.

At the hearing the above facts were shown, and there was evidence that as he lay in the pit McDaniel was asked how it occurred and answered, "playing, hanging on the end of the rope."

In its opinion the board said: ". . . we think the means and manner by which decedent tried to ascend from the ground to the upper floor did not place his act of ascending outside the course of his employment, and we think that it may be fairly said that deceased acted in the belief that he could ascend by the rope as he had done on the previous trip. It was his duty to go back to the upper floor for the purpose of loading more barrels of dolomite to the crane, and while a person of greater experience and more mature age would have used the stairway, we cannot say that decedent was guilty of willful misconduct, although his act in so doing constituted negligence on his part. It is apparent the deceased failed to obey a lawful and reasonable rule of his employer, provided for his own safety, and that the accident resulting in his own death was caused by the intentional failure of the decedent to obey a lawful and reasonable rule of the company in violation of section 29 of the act which justified the 15% penalty. . . . Under the law the burden of proof was on the defendant to show that decedent's death was caused by willful misconduct and under all the circumstances and facts, we cannot sustain this defense."

It also found as a fact that:

"2nd. He, McDaniel was working with the dolomite gang and after delivering a barrel of dolomite from the upper floor to the ground below, he took hold of the rope attached to the crane for the purpose of ascending to the upper floor. The upper and lower crane blocks came together, breaking the cable which let the deceased fell to the ground below, resulting in his death."

Compensation was awarded in conformity with this opinion. The employer filed a petition for appeal as provided in section 4935 Ky. Statutes, but summons was not issued thereon within the proper time and the appeal was dismissed. The award was not paid and the dependants filed suit in the circuit court for its enforcement. This was resisted by the employer on the ground that the award was void for want of jurisdiction in the board to allow compensation, because the accident which caused McDaniel's death did not arise out of his employment as is required by section 1 of the workmen's compensation act. Ky. Stats., section 4880. A demurrer was sustained to this response and judgment entered enforcing the award, from which this appeal is prosecuted.

Willful misconduct is not stressed in this court, but it is urged that the facts relied upon as to the other defenses are undisputed and thereby they are established as a matter of law, that the injury was occasioned by a sportive act and did not arise out of or in the course of the employment; that this was a jurisdictional question and thereby the board was without authority to render the award and for that reason it is void and can be attacked collaterally.

This act has been in operation since its adoption in 1916, and a number of its provisions have been construed by this court and at all times a liberal construction has been adopted in order to effectuate its purposes, which are to afford a speedy and scientific adjustment of compensation for injuries sustained by an employee arising out of and occurring in the course of his employment and caused by traumatic accidental injury. In matters arising within its purview all the old remedies and defenses are eliminated and an entirely new machinery substituted for the law courts, except in matters of review or in certain instances mentioned in the statutes where alternate relief is afforded.

Sections 73-74 of the act (4956-4957 Ky. Stats.) provide for a voluntary acceptance of its provisions by the respective parties. Section 1 (4880 Ky. Statutes) provides: "It (the act) shall effect the liability of employers subject thereto to...