Black Motor Co. v. Spicer

• Decision Date: 20 March 1942
• Citation: 160 S.W.2d 336,290 Ky. 111
• Parties: BLACK MOTOR CO. v. SPICER et al.
• Court: Kentucky Court of Appeals

160 S.W.2d 336

290 Ky. 111

BLACK MOTOR CO. v. SPICER et al.

Court of Appeals of Kentucky

March 20, 1942

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Proceedings under the Workmen's Compensation Act by W. C. Spicer claimant, opposed by the Black Motor Company, employer. From an adverse judgment of the Circuit Court, the employer appeals, opposed by claimant and others.

Reversed with directions.

J. B Snyder, of Harlan, for appellant.

C. B Spicer, of Harlan, for appellee.

THOMAS Justice.

The appellee, W. C. Spicer, was an employee of the Black Motor Company in its business as dealer in automobiles at its establishment maintained and operated in Harlan, Kentucky. While engaged in his employment--and on September 20, 1939--he claims to have sustained an accident which produced hernia, and on August 26, 1940, he filed an application with our Workmen's Compensation Board for an appropriate award, both he and his employer having accepted the provisions of the Compensation Act. His application was resisted on the ground that his alleged hernia was not produced as a result of any accident which he sustained as its employee. Honorable L. C. Flournoy as one of the Board's referees first reviewed the testimony and rendered an opinion that the defense made to the claim by appellant should be sustained. Later the entire Board approved that finding and entered this order: "Plaintiff's claim is hereby dismissed," which of course carried with it the conclusion by the full Board that the testimony did not sustain plaintiff's claim and that the referee's recommendation was approved. Claimant then filed in the Harlan Circuit Court, on April 23, 1941, his petition for a review of the Board's finding. Appellant answered the petition making the same defense that it did before the Compensation Board, and the record made by the latter was filed in the cause. Or submission the court reversed the judgments of both the referee and the Board, and directed specifically the judgment that it should render, which order was and is no doubt erroneous, even if the reversal was authorized by the testimony, since the judgment of the court should have gone no further than to direct the Board to set aside its former order and to render an award appropriate to the character of accident sustained (see section 4884 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes), and for which error alone a reversal of the judgment is required.

But we are convinced that the court erred in reversing the findings of fact by the referee and the Board on the defense made to the claim, and especially so in view of the requirement in such cases that the facts found by the Board shall not be disturbed by the court in a reviewing case like this if the finding is sustained by any competent evidence. Conda Coal Company v. Caldwell, 267 Ky. 774, 103 S.W.2d 303; Hoenig v. Lemaster's Committee, 268 Ky. 44, 103 S.W.2d 708; Diaz v. United States Coal & Coke Company, 270 Ky. 565, 110 S.W.2d 290; Benito Mining Company v. Girdner, 271 Ky. 87, 111 S.W.2d 571; Harlan Fuel Company v. Jordan, 271 Ky. 562, 112 S.W.2d 982; Black Mountain Corporation v. Lucas, 271 Ky. 655, 113 S.W.2d 15; Black Mountain Corporation v. Stair, 271 Ky. 658, 113 S.W.2d 17; Pioneer Coal Company v. Lisenbee, 276 Ky. 308, 124 S.W.2d 94. Other preceding cases are found in those opinions. Those opinions also defined what is "competent evidence" within the rule, which is, that it must tend to the establishment of the fact in issue and not rest on mere surmise or guess. Furthermore it was held in the case of Big Elkhorn Coal Company v. Burke, 206 Ky. 489, 267 S.W. 142, that circumstantial evidence might be considered by the Board in arriving at its factual conclusion, and which is but the application of the general rule that circumstantial evidence may be sufficient to overcome express contrary evidence, and especially so when the express testimony is loose, disconnected and lacking in its tendency to the logical establishment of the fact in issue. See Monson v. Com., decided Feb. 13, 1942, 290 Ky. 350, 161 S.W.2d 55. Having thus outlined the practice, and the limitation of the court's and the Board's power and authority in the determination of factual issues, we will now turn our attention to the testimony in the case for the purpose of determining whether or not the court was authorized to render the judgment appealed from.

To begin with, the Legislature in enacting our Compensation Act must have had in mind the opportunities for the commission of fraud by claimants suffering from hernia, since it devoted an entire section (4884) to the consideration of that one affliction, and made specific provisions with reference to the establishment of such a claim. Plaintiff, in testifying as to how he...