Blue Diamond Coal Co. v. Hensley
| Decision Date | 17 November 1950 |
| Citation | 314 Ky. 85,234 S.W.2d 317 |
| Parties | BLUE DIAMOND COAL CO. v. HENSLEY, et al. |
| Court | United States State Supreme Court — District of Kentucky |
James Sampson, Edward G. Hill, Harlan, for appellant.
George R. Pope, Harlan, for appellee.
John H. Hensley alias John H. Pace was accidentally killed on September 4, 1943, while employed in one of appellant's mines in Harlan County. Appellee, claiming to be his widow, filed with the Workmen's Compensation Board on September 9, 1943 a claim for compensation for his death. At the hearing before the referee a stipulation was filed covering all questions necessary to a recovery except the question as to whether or not appellee is the widow of deceased and was dependent upon him at the time of his death. Since all factors essential to maximum recovery were thus stipulated and conceded, the only question in all the hearings before the Board was this question of legal relationship to deceased. After hearing only the testimony of appellee and before any testimony was taken by appellant, apparently in violation of Rule 6 of the Workmen's Compensation Board, the Board, on September 5, 1944, entered an order submitting the case for opinion and judgment.
On motion of appellant, the Board, on September 19, 1944, set aside as premature the order of submission of September 5, 1944. In the meantime, on September 11, 1944, appellee had taken and on that day filed as additional evidence the testimony of three more witnesses. Without any order resubmitting the case, so far as the record shows, and without any proof having been taken or filed by the appellant, Hon. W. E. Begley, referee of the Board, on December 5, 1944, rendered an opinion and award by which he awarded to appellee $12 per week for 400 weeks, not to exceed $4800, and burial expenses of $150. On December 8, 1944, appellant filed its application for a full Board review and a motion to set aside the award of the referee and, on December 19, 1944, the Board entered an order setting aside the referee's award of December 5, 1944. After this was done, towit on December 13, 1944, appellee took further proof and filed the depositions of four additional witnesses. Without any testimony having been taken by appellant and without any order of submission, so far as the record shows, the case came into the hands of a member of the Board, Hon. Claude L. Hammons, and, on March 20, 1945, he filed as a full Board review an opinion and award by which appellee was again awarded $12 per week for 400 weeks and $150 burial expenses. Appellant then filed a motion to re-open and set aside the full Board review of March 20, 1945, that is, the Hammons' opinion and award, and, on April 3, 1945, the Board entered an order setting aside the full Board review of March 20, 1945, and in that order allowed appellee 30 days to complete her proof, appellant 30 days thereafter to complete its proof and appellee 10 days thereafter for rebuttal. This time was further extended by agreement and all the evidence, including appellee's rebuttal was filed by August 20, 1945, and, on September 4, 1945, an order was entered submitting the case. On December 4, 1945, with the evidence all filed, another referee, Hon. C. H. Bruce, filed an opinion and award in which he awarded appellee $12 per week for 400 weeks and $150 burial expenses. Within the seven day period appellant filed its application for a full Board review and, on February 5, 1946, the Board, this time through Board member Hon. E. Poe Harris, entered an opinion and award reversing the opinion and award of the referee and holding that 'no marriage license was ever issued to the claimant and the deceased employee; that they never went through a marriage ceremony; that at the inception of and throughout their relationship the deceased had a living wife, to the personal knowledge of the claimant; that the relationship between the claimant and the employee was adulterous and by them so known to be at all times.' The award of the referee was withdrawn and appellee's claim was denied.
Within the twenty-day period appellee appealed the case to the Harlan Circuit Court and the case was submitted on appropriate pleadings and on the record. On May 4, 1949, a judgment was entered reversing the last full Board review of February 5, 1946. It is from this judgment that appellant prosecutes this appeal.
Reversal is sought by appellant on the ground that the last award of the Board of February 5, 1946, which it contends is the only legal one, is supported by the evidence and cannot, therefore, be disturbed by the court.
Appellee seeks to sustain the judgment on the ground that the full Board opinion and award of March 20, 1945, the Hammons' award, was a final order and the Board was without authority to set it aside as it did by its order of April 3, 1945, and that appellant's only remedy was by appeal to the circuit court pursuant to KRS 342.285. She further contends that the opinion and award of February 5, 1946, the Harris award, fails to comply with KRS 342.275 in that it does not contain a statement of facts and rulings of law governing the case and that the award is not supported by the evidence.
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