Childers v. Hackney's Creek Coal Co.
| Decision Date | 27 May 1960 |
| Citation | 337 S.W.2d 680 |
| Parties | Jessie CHILDERS, Appellant, v. HACKNEY'S CREEK COAL COMPANY et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Dan Jack Combs, Pikeville, for appellant.
John M. Stephens, Pikeville, for appellees.
CULLEN, Commissioner.
Jessie Childers made application to the Workmen's Compensation Board for an award of compensation for total permanent disability resulting from silicosis. The referee's opinion recommended such an award. Application for a full board review was made and on April 1, 1958, an 'Opinion and Order' was issued, setting aside the report of the referee and denying compensation on the ground that the employe had not sufficiently proved an injurious exposure to the hazard of silicosis in his employment with the mining company from which he sought compensation. The 'Opinion and Order' bore in its caption the recitation that two of the five members of the board were not sitting. One member filed a dissenting opinion. Accordingly, the purported full board opinion and order actually was that of only two members.
On April 15, 1958, the board entered the following order:
'The Board having noted that the purported opinion and order of April 1, 1958, was concurred in by only two members of the Board, and being of the opinion that a valid order or award requires the concurrence of at least three members, the Board, upon its own motion, adjudges, decrees and orders that the opinion and order of April 1, 1958, is a nullity and is therefore cancelled and set aside, and that this cause shall be placed upon the motion docket and there remain until at least three members concur in the disposition thereof.'
Notwithstanding the above order, Childers took an appeal to the circuit court from the purported order of April 1. His counsel states that the appeal was taken 'out of an abundance of precaution.' In addition to asking that the order be reversed on its merits, the complaint in the circuit court asked that the order be adjudged void because it had not been approved by a majority of the members of the board. The circuit court held that the order was valid and affirmed the finding of the board that there was insufficient proof of injurious exposure. In addition, the court held that the employe had not given timely notice of disability to his employer.
The case is now before us on Childers' appeal from the circuit court judgment. We previously have denied, on the ground that there was an adequate remedy by appeal, a separate application filed by Childers in this Court for an order of mandamus or prohibition requiring the judgment to be set aside for want of jurisdiction of the circuit court. Childers v. Stephenson, Ky., 320 S.W.2d 797.
It is our opinion that the purported order of April 1 was a nullity and that the circuit court should have so adjudged and remanded the case to the board. It is true that subsection (1) of KRS 342.255 provides that a majority of the board shall constitute a quorum 'for the transaction of business,' and that under KRS 446.050 a majority of a quorum of an official body ordinarily is empowered to exercise the authority of the body. See Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039. But the rule announced by KRS 446.050 does not apply where by express words or clear implication a contrary intention is indicated with respect to a particular body. Traylor v. Cummins, 222 Ky. 438, 1 S.W.2d 530. Such a contrary intention is indicated with respect to the Workmen's Compensation Board in the last sentence of subsection (2) of KRS 342.255, which is, 'Any investigation, inquiry, hearing or decision of the board and any order made by a member thereof, when approved by a majority of the members and so shown on a record of its proceedings, shall be considered an order of the board.' (Emphasis supplied.) That an order of the board requires the approval of a majority of its members was recognized in Spencer v. Chavies Coal Co., 280 Ky. 152, 132 S.W.2d 746.
While we are reversing the judgment on the ground that there has been no final order of the board, we deem it appropriate to comment on the merits of the case with respect to the questions of timely notice of disability and proof of injurious exposure, since those questions may again be litigated.
As concerns the question of notice of disability, it appears to be conceded that the employe gave notice within a sufficient time after receiving a medical diagnosis that he had silicosis. However, under the 1956 amendment to KRS 342.316(2), it is required that 'notice of disability shall be given to the employer as soon as practicable after the employe...
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Miller v. Tema Isenmann, Inc.
...that is required ... is that the exposure be such as could cause the disease independently of any other cause." Childers v. Hackney’s Coal Co., 337 S.W.2d 680, 683 (Ky. 1960) (emphasis added). For Miller to prevail on his claim of occupational disease, he was required to present evidence of......
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Greg's Constr. v. Keeton, 2011-CA-000761-WC
...conditions were such that they could cause the disease over some indefinite period of time.Id. at 696 (quoting Childers v. Hackney's Creek Coal Co., 337 S.W.2d 680, 683 (Ky. 1960)). Like KRS 342.316(1)(b) and (10), the General Assembly enacted KRS 342.7305(4) to place exclusive liability up......
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Cutshin Coal Co. v. Begley
...had contracted such disease, which would require him to give notice as soon as practicable after he quit work. In Childers v. Hackney's Creek Coal Company, Ky., 337 S.W.2d 680, we held this a question of fact to be determined by the Board. In that case we upheld a finding that shortness of ......
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Davis v. Harlan Everglow Coal Co.
...There is no merit in the suggestion by Davis that three days' exposure is insufficient, in view of the holding in Childers v. Hackney's Creek Coal Co., Ky., 337 S.W.2d 680, that there is no minimum time requirement for the period of exposure. It was held that in order to support a claim it ......