Beattyville Co. v. Sizemore
| Decision Date | 02 May 1924 |
| Citation | 203 Ky. 7,261 S.W. 620 |
| Parties | BEATTYVILLE CO. ET AL. v. SIZEMORE ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lee County.
Proceeding by Guy Sizemore under the Workmen's Compensation Act, to obtain compensation for personal injuries, opposed by the Beattyville Company, the employer, and the Maryland Casualty Company, the insurer. There was an award of compensation, and the insurer petitioned to obtain order crediting amount incurred in defending common-law action prosecuted against the employer. The board dismissed the application, and its action was sustained in the circuit court, and an appeal is taken. Affirmed.
Beverly R. Jouett, of Winchester, for appellants.
Rose & Stamper, of Beattyville, and Samuel M. Wilson, of Lexington for appellees.
Appellee Guy Sizemore sued the appellant the Beattyville Company to recover damages for personal injuries sustained while working in the latter's coal mine. One of the defenses of the company to that action was that it was operating under the Workmen's Compensation Act which Sizemore, as its employee, had also accepted in conformity with the statute and the trial court so held and dismissed the petition. That judgment was affirmed by this court in the case of Sizemore v. Beattyville Co., 195 Ky. 776, 243 S.W 1010. A judgment was rendered against Sizemore in favor of the Company, upon the determination of that case, for its court cost, but which did not include incidental expenses in defending the suit, such as attorney's fees and other necessary expenses incurred. After the opinion was rendered by this court, Sizemore applied in the regular manner to the Workmen's Compensation Board to obtain the proper award for his injuries and, upon a hearing before it, he was awarded $12 per week for 150 weeks, which was the amount the appellant, Maryland Casualty Company, as insurer of the Beattyville Company under the Compensation Act, had offered him before he filed his common-law action. After making that award by the Compensation Board, the insurance company petitioned it in the regular way to obtain an order from it crediting the award by $653.30, which it claimed was incurred by it in defending the common-law action prosecuted against the Beattyville Company, which it had also indemnified, and which action it in reality defended under the terms of its indemnity policy requiring it to do so. That sum included the adjudged court cost of the common-law action in favor of defendant therein, as well as attorney's fees and other incidental expenses. The Board adjudged that it was without jurisdiction to determine the question presented, and dismissed the application therefor. The matter was taken to the circuit court in the manner prescribed by the Workmen's Compensation Act, and that court was of the same opinion and sustained the demurrer filed to the petition for a review in that court, and in which all the facts were pleaded, and plaintiffs (or petitioners) declined to plead further, and their action was dismissed, from which judgment they have appealed to this court.
The jurisdiction of the Compensation Board to determine the question presented is claimed by appellants to be conferred by sections 4940 and 4943 of the Workmen's Compensation Act. The first one says:
"If the Board or any court before whom any proceedings are brought under this act shall determine that such proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who has so brought, prosecuted or defended them." (Our italics.)
While the second one is thus worded:
"All questions arising under this act, if not settled by agreement of the parties interested therein, with the approval of the board, shall be determined by the board except as otherwise herein provided for."
It is earnestly contended that the Board had jurisdiction in the premises because of those sections, and that it erred in holding to the contrary; but our interpretation of section 4940 () is that it refers exclusively to proceedings provided for by the statute, and that it has no reference...
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