Hale v. State Highway Com'n

• Decision Date: 18 February 1936
• Parties: HALE et al. v. STATE HIGHWAY COMMISSION.
• Court: Kentucky Court of Appeals

91 S.W.2d 23

262 Ky. 753

HALE et al. v. STATE HIGHWAY COMMISSION.

Court of Appeals of Kentucky

February 18, 1936

Appeal from Circuit Court, Webster County.

Proceeding under the Workmen's Compensation Act by Ellen Hale, as widow, and on behalf of minor dependent, for the death of her husband, opposed by the State Highway Commission, employer. From judgment of the Circuit Court affirming a dismissal of application by Compensation Board petitioners appeal.

Affirmed.

Vert C Fraser, of Providence, for appellants.

Bailey P. Wootton, Atty. Gen., and Francis M. Burke, Asst. Atty Gen., for appellee.

CREAL Commissioner.

In the summer of 1933 the State Highway Commission of Kentucky was engaged in the construction of certain roads in Webster county under force account and among the laborers employed in July and August was Baxter Hale. The Highway Commission was operating under the Workmen's Compensation Law and Baxter Hale and all other employees engaged in the work were required to and had accepted the provisions of the law by signing the register. On February 8, 1934, Hale died survived by a widow, Ellen Hale, and a daughter, Martha, 7 years of age, as dependents.

In April, 1934, the widow filed with the Workmen's Compensation Board an application for adjustment of compensation on behalf of herself and daughter, claiming that her husband's death resulted from injuries received in the course of his employment while at work for the Highway Commission. One of the board's referees heard the case and rendered an opinion awarding the claimant the sum of $7.80 per week for 335 weeks. The Highway Commission filed motion for a full board review, which was sustained, and the board set aside the referee's order of November 7, 1934, and dismissed the application for compensation. On appeal to the circuit court for a review of the board's award and finding, the order of the board dismissing the application for compensation was affirmed, and the claimants are here on appeal from that judgment.

According to the evidence of appellant, Baxter Hale was, during the months of July and August, operating a slip scrapper and after a load had been dumped and he was returning for another, the scrapper struck a root or some obstruction causing the back end to fly up and one of the handles struck him on the side or back of the neck. None of the witnesses attempted to fix the date when the accident is alleged to have occurred, but two or more witnesses claimed to have seen the handle strike him. After receiving the blow on the neck, he went to the shade, where he procured a drink from a barrel of ice water, and another laborer drove his team for 15 or 20 minutes until he returned to his work. He stayed on the job until the work was completed. Some of the witnesses testified that he was complaining of his neck and throat hurting him, and that his neck appeared to be swollen, and he became hoarse. Some testified that he wore a cloth around his neck. His father testified that after he claims to have received the lick, there was a bruised spot on his neck, and this was followed by a lump or swelling; that he gradually grew worse and was able to do very little work.

Dr. Earl R. Frye, a chiropractor, of Providence, Ky. testified that Hale came to him for treatment on September 4, 1933; that he found an enlargement of the cervical glands and the left half of the thyroid gland much swollen; that he treated him thereafter on nine different occasions up to and including September 18; that as he recalled, the patient told him he had had a sudden severe jerk. He gave as his opinion that a bruise could have caused the swelling of the glands; that he did not make a diagnosis. When asked if the patient was suffering from Hodgkins disease, he replied, "Yes sir, forerunners."

Dr Ralph E. Caldwell, a physician at Providence, was called to treat Hale about January 14, 1934, and continued to treat him until February 7. The symptoms he found were difficult breathing, difficult...