Harrigan v. The Western Coal and Mining Company
| Citation | 300 P. 1115,133 Kan. 573 |
| Decision Date | 03 July 1931 |
| Docket Number | 30,180 |
| Parties | HUGH HARRIGAN, Appellee, v. THE WESTERN COAL AND MINING COMPANY, Appellant |
| Court | United States State Supreme Court of Kansas |
Decided July, 1931.
Appeal from Cherokee district court; JOHN W. HAMILTON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. WORKMEN'S COMPENSATION ACT--Review of Settlement--Evidence. In proceedings for compensation for the loss of one eye and loss of the use of the other, the record examined and held to support a finding that the injured workman did not knowingly agree that what weekly payments of compensation and advance payments of compensation his employer gave him without the formality of notice, demand and award, were intended to be compensation for the loss of one eye only and not for loss and injury to both eyes.
2. SAME--Claim for Compensation--Effect of Voluntary Payments. The statutory time for formal notice and demand for compensation for injuries to a workman does not commence to run where the employer begins to pay compensation without such formality. The notice and demand will be timely and sufficient if given within ninety days after such voluntary and informal payments of compensation are suspended.
3. SAME -- Review by Supreme Court. Where there was some evidence of causal connection between the accident and injury, the trial court's finding is not subject to review under the supreme court's limited jurisdiction in compensation cases.
4. SAME--Validity of Agreement Affecting Compensation. An agreement concerning compensation made between an injured workman and his employer not filed with the compensation commission within sixty days is not binding on the workman.
5. SAME--Other objections to the judgment considered and not sustained.
J. M Challiss, of Atchison, for the appellant; W. P. Waggener, O. P. May and B. P. Waggener, all of Atchison, of counsel.
A. L. Majors, of Columbus, for the appellee.
This is an appeal from an award of compensation to a workman who sustained injuries in his employer's coal mine, resulting in the loss of one eye and an almost total and permanent disability of the other.
The pertinent facts were these: On January 20, 1928, the appellee, Hugh Harrigan, and a fellow workman were operating a pump in the coal mine of the Western Coal and Mining Company in Cherokee county. The mine water was red and stagnant and charged with foul elements injurious to the eyes. The pump was not functioning properly and Harrigan stooped to see what was wrong with it. While so engaged the packing of the pump blew out and the foul water was thrown into his eyes, so greatly injuring them that the left one had to be removed within a few days, and the injury to the right eye was such a source of pain and anxiety to the workman that he had to make two protracted sojourns in a Kansas City hospital for its treatment. Eventually its vision, too, was found to be too greatly impaired to be industrially useful to him.
That the injured workman was entitled to compensation was conceded without the formality of a demand and award by the compensation commissioner. The cashier of the appellant company made a computation based upon 60 per cent of appellee's average weekly wages and on the assumption that his accident and injury would only result in the loss of one eye. On that basis and assumption the cashier advised the claimant that he would be entitled to $ 15.58 per week for 110 weeks. Harrigan expressed a desire to have $ 500 advanced to him so that he would have funds to go to a hospital to have his remaining eye treated. The cashier took up this matter with the defendant company and an arrangement was effected whereby the sum of $ 372.32 was advanced to appellee and his weekly compensation correspondingly reduced from $ 15.58 to $ 12 per week.
Payments of compensation pursuant to this amicable arrangement were made for 110 weeks, at the end of which period (April 19, 1930) they ceased. Within ninety days thereafter, on May 22, 1930, appellee served written notice and demand for compensation at $ 18 per week for the loss of his left eye and for a similar amount for one-half of the loss of the sight of his right eye.
The respondent mining company filed an answer, alleging that the injury which claimant had sustained in its coal mine in January, 1928, had affected his left eye only; that it had effected a settlement with him therefor on March 27, 1928, whereby it had agreed to pay him $ 15.58 per week for 110 weeks, which agreement it had faithfully kept until April 19, 1930, and that it had paid him the agreed total sum of $ 1,713.80; but that claimant had refused to execute final release therefor, although he had signed a receipt for the compensation paid him, and that this instrument had been filed with the compensation commission within sixty days after the last item of compensation had been paid to the claimant.
Defendant's answer also pleaded that the time, place and particulars of the accident to claimant's right eye had not been given to it within ten days, and defendant did not have actual knowledge of the injury to claimant's right eye; that no written claim for compensation was made upon it within ninety days after the accident; that no proceedings were instituted within one year after the date of the agreement for compensation to have it set aside, and that for these and other reasons needless to repeat defendant denied liability.
To this answer claimant filed a reply alleging that no agreement of settlement was ever made between claimant and respondent prejudicially affecting his right to compensation as provided by statute; that he did not intentionally sign any instrument to that effect; that no written agreement purporting to settle his compensation had been filed with the compensation commission as required by statute and that any such purported agreement was void.
The matter was heard before certain examiners for the commission, and an award in claimant's behalf was made allowing compensation at the rate of $ 18 per week for 415 weeks, and finding that $ 830 thereof was overdue and payable at once and that payments of $ 18 per week should commence at the time of the award and continue for 270 weeks. While the basis of this award is not indicated in the record, it appears to have been an award for the loss of both eyes--loss of one and loss of use of the other--for which the statute allows 60 per cent of the workman's average weekly wages for eight years, with a deduction for the 110 weeks' payments of $ 15.58 per week made by the respondent prior to the institution of formal proceedings before the compensation commission.
The respondent appealed to the district court from this award, and on a review of the record made before the compensation commission that tribunal made its own findings of fact and conclusions of law, not greatly at variance with those of the commission. Part of the court's findings read:
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