Green River Fuel Co. v. Fryar

• Decision Date: 07 March 1933
• Parties: GREEN RIVER FUEL CO. et al. v. FRYAR.
• Court: Kentucky Court of Appeals

58 S.W.2d 232

248 Ky. 51

GREEN RIVER FUEL CO. et al. v. FRYAR.

Court of Appeals of Kentucky

March 7, 1933

Appeal from Circuit Court, Muhlenberg County.

Proceeding under the Workmen's Compensation Act by T. H. Fryar, as next friend of his son Kearney Fryar, a minor, alleged to have been wholly dependent on his brother Elmer Fryar deceased, claimant, opposed by the Green River Fuel Company employer, and others. The circuit court, having reversed the findings of the Workmen's Compensation Board, which had granted an award based on partial dependency, allowed compensation based on total dependency, and the employer and others appeal.

Reversed and remanded.

V. C McDonald, of Louisville, for appellants.

Cass L Walker, of Dixon, for appellee.

RATLIFF Justice.

Elmer Fryar, a single man of 21 years of age, was killed by accident in September, 1928, while working for the appellant Green River Fuel Company. T. H. Fryar, father of the decedent, Elmer Fryar, and Kearney Fryar, filed application with the Workmen's Compensation Board of Kentucky for adjustment of claim, in which it was alleged that Kearney Fryar, about 14 years of age, was a cripple and wholly dependent upon his deceased brother, Elmer Fryar, for support at the time of the accident. The case was assigned for hearing in due course, the evidence taken, and the Workmen's Compensation Board found that Kearney Fryar was partially dependent on his deceased brother, Elmer Fryar, and entered an award on the basis of 15 per cent. dependency, or $1.80 per week for a period of 335 weeks, and burial expenses of the deceased not to exceed $75.

The petitioner, being dissatisfied with the judgment or award entered by the Workmen's Compensation Board, asks for a full board hearing, which was had and resulted in confirmation of the award allowed originally. The petitioner then appealed from the latter order to the Muhlenberg circuit court for a review of the finding of the board. The circuit court, upon a review of the record, reversed the findings of the board and found and adjudged that Kearney Fryar was wholly dependent upon the deceased, Elmer Fryar, and that he recover the sum of $12 per week for the maximum period of 335 weeks, not exceeding the sum of $4,000, and burial expenses not to exceed the sum of $75, from which judgment appellant prosecutes this appeal.

A number of errors is assigned and insisted on by appellant for reversal, among which most earnestly stressed is that the circuit court was without authority to revise the order of the Workmen's Compensation Board because there is competent evidence to support its findings.

Where there is no claim of fraud or mistake, the Workmen's Compensation Board's findings of facts are conclusive unless there is an entire absence of evidence to support them. Ky. Stats. § 4935; Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431, 273 S.W. 34; Furnace Coal Mining Co. v. Carroll, 212 Ky. 1, 278 S.W. 171; Wallins Creek Collieries Co. v. Cole, 218 Ky. 116, 290 S.W. 1049; Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936; Darby Harlan Coal Co. v. Fee, 214 Ky. 470, 283 S.W. 438, 439; Wakenva Coal Co. v. Combs, 232 Ky. 546, 24 S.W.2d 275; Mary Helen Coal Corporation v. Hensley, 237 Ky. 348, 35 S.W.2d 533; Mary Helen Coal Corporation v. Hooker, 237 Ky. 346, 35 S.W.2d 535.

In the case of Darby Harlan Coal Co. v. Fee, supra, the question presented was similar to the present case. The Workmen's Compensation Board found that the petitioner was a partial dependent. The circuit court modified the award and adjudged her to be a total dependent. The court said: "The extent of the dependency of Minerva Fee upon the earnings of her son was a question of fact, and, the board having found her to be one-fourth dependent, the circuit court was without jurisdiction to change that finding to total dependency, as findings of fact made by the Workmen's Compensation Board, when supported by evidence, are conclusive on the courts," and cited Hagan v. Mason-Hanger Const Co., 198 Ky. 326, 248 S.W. 896; Beaver Dam Coal Co. v. Hocker, 202 Ky. 398, 259 S.W....