Black Mountain Corp. v. Daniels' Guardian

• Court: Kentucky Court of Appeals
• Writing for the Court: RICHARDSON, Justice.
• Citation: Black Mountain Corp. v. Daniels' Guardian, 258 Ky. 645, 80 S.W.2d 824 (Ky. Ct. App. 1935)
• Decision Date: 12 March 1935
• Parties: BLACK MOUNTAIN CORPORATION v. DANIELS' GUARDIAN et al.

80 S.W.2d 824

258 Ky. 645

BLACK MOUNTAIN CORPORATION v. DANIELS' GUARDIAN et al.

Court of Appeals of Kentucky

March 12, 1935

Rehearing Denied April 30, 1935.

Appeal from Circuit Court, Harlan County.

Proceeding under the Workmen's Compensation Act by Mossie Daniels' and Susie Daniels' Guardian and others against the Black Mountain Corporation for the death of James Daniels. From a judgment approving an award of compensation the Black Mountain Corporation appeals.

Affirmed.

B. M Lee, of Harlan, for appellant.

E. L Morgan, of Harlan, for appellees.

RICHARDSON Justice.

This is a workmen's compensation case. There is no dispute about the injury that caused the death of the employee, James Daniels. It occurred about 9:30 or 10 o'clock a. m. May 5, 1931. He was in the employ of the Black Mountain Corporation, to guard its Property "in the camp," going on duty on the approach of night and remaining until 6 o'clock a. m.

The Black Mountain Corporation was engaged extensively in mining coal in Harlan county, and had been so engaged for a number of years. Daniels, when he first entered its employment, engaged in the work of a "coal loader." Later he assumed and discharged the duties of watchman, which carried with it the duty of arresting and ejecting from the company's premises persons disturbing the peace or otherwise violating the law. To properly perform his duties, it was essential that he have the authority of an arresting officer. Accordingly, with the consent of the sheriff of the county, he was, by the county court, appointed deputy sheriff. As Such, for a number of years, at the salary of $175 a month, for the Black Mountain Corporation, he discharged the duties of what it terms "watchman." When requested by the sheriff, he would serve summons in civil actions and warrants of arrests in criminal prosecutions and return the same. The sheriff allowed him to collect and keep the statutory fees therefor. The Black Mountain Corporation acquiesced in his performance of these official duties.

It is apparent that for a number of years he acted in a dual capacity: deputy sheriff and Watchman of the Black Mountain Corporation.

The occasion on, and the circumstances in, which he was killed are accurately described in Jones, Hightower v. Com., 249 Ky. 502, 60 S.W.2d 991; Reynolds v. Com., 249 Ky. 644, 61 S.W.2d 288; Poore v. Com., 249 Ky. 665, 61 S.W.2d 320; and Hudson v. Com., 249 Ky. 8845, 61 S.W.2d 874.

The Black Mountain Corporation's evidence shows that its superintendent had a conversation by telephone with the sheriff of the county and was requested by him to inform Daniels of the sheriff's desire for Daniels as deputy sheriff immediately to perform certain duties in connection with other deputies from the office. The superintendent claims he informed Daniels of the purpose of the sheriff to send from the office other deputies to meet Daniels and to perform certain official duties, and that he was engaged in these duties at the time he was killed.

It argues the evidence establishes beyond question, cavil, and doubt that at the time he was killed he was acting solely in performance of his duties as deputy sheriff as directed by the sheriff of Harlan county, and his death did not "arise out of, and in the course of, his employment" as its guard or watchman. Section 4880 et seq., Kentucky Statutes.

The Workmen's Compensation Board, on the facts presented awarded compensation to the dependents, two infant children, of Daniels, on the theory that at the time of his death he was acting as guard in the performance of an act for, and at the direction of the superintendent of, the Black Mountain Corporation, though off of its premises, essentially within the scope of his duty as guard, and when he was functioning as such. The evidence on behalf of Daniels' dependents, bearing on this issue is, that Daniels was a deputy sheriff and as such was a guard of the Black Mountain Corporation, and performed his duties day or night, mostly at night, on or off of the premises of the company as and when directed by its superintendent. And on the morning of the day he was killed, the company had sent, or permitted at the direction of its superintendent, one of its trucks to go a distance of about three miles for the purpose of transporting the household and kitchen furniture of Roy Hughes who was moving on to its premises to engage immediately in its services as a miner. He had made arrangements to that effect with the company, and it was needing and wanting his services in its mining operations. For some time previous, a number of men employed in its mine, on account of labor controversies and disturbances, had ceased to work at its mine, and as others could be secured they were employed in their stead. On the morning of the day of the death of Daniels, the superintendent went to the home of Daniels and in the presence of Dollie Daniels, as she claims, informed him (Daniels) he had sent a truck of the coal company to Verda, a distance of about three miles, for the purpose of bringing the furniture of Roy Hughes and wanted him "to go down and see it through." After receiving this direction of the superintendent, Daniels immediately went to other guards of the company and informed them what he and they were to do. Daniels accompanied by them and Jack Snure,...