Bates & Rogers Const. Co. v. Allen

Citation210 S.W. 467,183 Ky. 815
PartiesBATES & ROGERS CONST. CO. ET AL. v. ALLEN.
Decision Date28 March 1919
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Mason County.

Proceeding by Henry Allen under Workmen's Compensation Act for compensation for injury, opposed by the Bates & Rogers Construction Company, employer. From judgment of circuit court awarding compensation, on appeal by employé from a finding of the Workmen's Compensation Board denying compensation, the employer and the Workmen's Compensation Board appeal. Judgment of circuit court affirmed.

Fred Forcht, of Louisville, and Stanley Reed, of Maysville, for appellants.

Chas H. Morris, Atty. Gen., and D. M. Howerton, Asst. Atty. Gen A. D. Cole, of Maysville, and Lawrence Leopold, of Louisville, for appellee.

CARROLL C.J.

This case, under the Workmen's Compensation Act (Laws 1916, c 33), is brought here by the employer, Bates & Rogers Construction Company, from the Mason circuit court, to which an appeal was prosecuted from the decision of the Workmen's Compensation Board by the appellee, Henry Allen, who had been denied compensation by the board.

There is no dispute about the facts, which are substantially as follows: Henry Allen was in the employ of the appellant Bates & Rogers Construction Company at lock and dam No. 33 on the Ohio river near Maysville, Ky. during the month of November, 1916. He went from Louisville, Ky. where he obtained the employment through the agency of the state free employment office, to Maysville, and about four days after he commenced work for the construction company received the injury for which he claimed compensation.

He testified before the board on the hearing of his claim that the injury happened in this manner:

"Well, I was tearing up the dinky track, the one the little engine hauls on, hauls the cars, and working on a kind of trestle; the men would take up the rail and carry it back, and where the angle iron holds them together they wouldn't come apart; there was a big, heavy fellow, called Cobb, and he was hitting on these pieces of iron that held the rail together with a sledge, to loosen them, so I could get them apart, and something flew up and hit me in the eye, and that's the way I got hurt."

Asked as to whom he told about it and what occurred afterwards, he testified as follows:

"A. At that time there was several men knew I got hit in the eye with something. I told the boss I got hit. Q. Who was the boss? A. Little short fellow, they called Tom--wore a straight hat like a cowboy. Q. Do you know what his last name was? A. No, sir; Tom is all I know. I was not there long enough to get acquainted. I was only there a little over a week. Q. Was Tom the man in charge of you? A. Yes, sir. Q. Representing Bates & Rogers Construction Company? A. He was their foreman. Q. How long did you continue to work after you received this blow in the eye? A. Well, I worked--that was in the morning, and I worked out that day, and I worked the next day, and the next morning I left; came back to Louisville. Q. The day after you were hurt, did your eye show any evidence of being hurt? A. Well, it pained me all the time. When it was first hurt, I just thought something was in there, and would work out, and quit hurting right away. I didn't have any idea it would terminate the way it did; but then it would feel all right for a while, and commence hurting again, and kept on, until it got inflamed, so I couldn't sleep. Q. Did you tell the foreman anything about it afterwards? A. Well, the foreman knew about it; knew when I got hurt; knew the last day I worked. Q. How did he know that? A. Well, I told him, when I first got hit, I was hit in the eye with something. Q. After you came to Louisville, what did you do? A. Well, I came home, and after I went and came home I couldn't work, and I went to the City Hospital. Q. How long were you in the hospital? A. I judge about 11 days. I went in on Monday, and came out the following Sunday week. Q. Mr. Allen, what was the condition of your eye before you were struck with whatever substance struck you? A. I had good eyesight. Q. How is your sight in the injured eye since that blow? A. Well, I haven't got any sight at all. I can close this eye and tell light; that's all I can see. I can't see anything. Q. Do you know whether that condition was brought about by this blow in your eye? A. Well, I never had anything the matter with my eye in my life until I got hit with that piece, whatever it was; never had any diseases in my eyes, or anything, or any complaint. Q. Now, after you were released from the hospital, what attempt, if any, did you make to notify Bates & Rogers Construction Company of your injury? A. Well, I wrote them, the best of my memory, about three letters. Q. And when was the first one that you wrote? A. Well, it was before Christmas, and then I wrote one around Christmas, and then I wrote another letter, I think a couple of weeks after Christmas, and it came back. I wrote to the wrong place. I had it Mayfield, instead of Maysville, and then I went to Bob Lucas, and he wrote a letter, and kept a couple of letters for me. Q. There is an envelope; read how that is addressed. A. Well, that is Mayfield, Ky.; that's the way I wrote. Q. That is a stamped envelope. A. Yes, sir. Q. It has across the face the figure of a hand, 'Returned to the writer unclaimed.' Will you file that as part of your deposition? A. Yes, sir. 'Law Offices Robt. H. Lucas, 316-317 Louisville Trust Building. Louisville, Ky. January 30, 1917. Bates & Rogers Construction Co., Mayfield, Ky.--Gentlemen: I have been employed by Mr. Henry Allen of this city to represent him in a claim against you growing out of an injury which he received while in your employ on lock and dam No. 33 on or about November 1, 1916. While engaged in his work he was struck in the eye with a piece of steel, which caused him to lose the sight of his eye. Dr. Wolfe, in the Atherton Building, this city, has been attending him. Kindly investigate this matter and inform us whether or not we may expect a settlement and oblige. Yours very truly [Signed] Robert H. Lucas.' Q. What time in the morning was it you got hurt? A. Must have been around 10 o'clock, 9 or 10 o'clock. Q. And you continued to work all that day? A. Until 3 that evening. Q. And went to work the next morning? A. Yes, sir; and worked until 3 the next evening. Q. How many doctors did Bates & Rogers Construction Company have at their camp? A. If they had any, I never saw them. Q. Did you ask for a doctor? A. I never heard anybody say anything about any doctor; I never heard of any doctors. Q. Did you ask any of the bosses for a doctor, or for any medicine for your eye? A. No, sir; I asked one fellow where there was a hospital, and he said they had a place at Maysville where they taken men who was sick and hurt. Q. You say there was a man named Tom there, who was your boss? A. Yes, sir; Tom. Q. Did he pay you off? A. I don't know--they called it a job and jump job--you can get your money any time. Q. Did you go to the office to get your pay? A. No, sir; you had to go to the commissary. Q. You did that, did you? A. Yes, sir. Q. Did you say anything to the commissary about getting hurt--about quitting because you were hurt? A. No, sir. Q. Or the man at the office? A. No, sir. Q. Did you tell the man at the commissary, or the man where you got your money, why you were quitting? A. No, sir; never told anybody but the foreman. Q. That is this man 'Tom,' you don't know his last name? A. No, sir; that's all I know him by--Tom. * * * Q. When you read that notice, you knew you were working under the Workmen's Compensation Act? A. I knew I was working under the compensation all the time; I knew that. Q. You say you wrote three letters to Bates & Rogers at Mayfield, Ky.? A. Yes, sir. Q. How did you happen to write it Mayfield, when you knew their plant was located at Maysville? A. I was taking Mayfield for Maysville all the time; that's the way I made the mistake. I thought it was Mayfield, instead of Maysville. Q. What did you say in your letters to the Bates & Rogers Construction Company? A. Well, that has been a long time. I don't know whether I can think exactly, or not, what I wrote now. I don't hardly think I could. Q. Well, about what you said? A. Well, I know this; I told them I was hurt there by being hit there with something in the eye, and I lost my sight out of one eye, and I know I asked them if they couldn't help me a little. Q. Was that the tenor of what you said in all three of the letters? A. Yes, sir; just about the same. Q. Were these letters returned to you? A. Yes, sir. Q. What became of them? A. Well, in fact, I never paid any mind to them; I couldn't say. Q. When did you first find out that you had made a mistake between Mayfield and Maysville? A. Well, I never found that out until I was talking to Mr. Leopold. Q. Did Mr. Lucas tell you? A. No; Mr. Lucas never did know. Mr. Lucas didn't know; he thought it was the same I did."

John Reed, who was a laborer with Allen, testified as follows:

"Q. Were you up there wih Henry Allen, the plaintiff in this case? A. I worked with him there; yes, sir. Q. Were you housed in the same bunkhouse with Henry Allen? A. Yes, sir. Q. Did you have occasion to observe him before the time he complained of an accident? A. Yes. Q. What was the apparent condition of his eye, his left eye, at that time? A. I didn't see anything wrong with it. Q. Was there any evidence of redness or inflammation? A. No. Q. Or being bloodshot or anything? A. No. Q. When was the first time you saw anything the matter with his eye, his left eye? A. Well, it was one evening that, after our shift was out, he complained of his eye, and same night he was up and complained with it. Q.
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