Hosman Coal Co. v. Carr

Citation16 S.W.2d 167,228 Ky. 786
PartiesHOSMAN COAL CO. v. CARR et al.
Decision Date22 March 1929
CourtCourt of Appeals of Kentucky

Rehearing Denied May 3, 1929.

Appeal from Circuit Court, Bell County.

Proceeding under the Workmen's Compensation Act by Lillie Carr and others, claimants, for the death of their husband and father opposed by the Hosman Coal Company, employer. The Workmen's Compensation Board awarded compensation to claimants, and on appeal the circuit court modified, and, as modified, affirmed, the award, and the employer appeals. Affirmed.

Hite H Huffaker, of Louisville, and Low & Bryant and John R Moremen, all of Pineville, for appellant.

James S. Golden, of Pineville, for appellees.

DIETZMAN J.

Claiming that their decedent, William Carr, died by reason of an accident arising out of and in the course of his employment while working for the appellant, under the Workmen's Compensation Act (Ky. St. § 4880 et seq.), the appellees, who are the widow and minor children of the deceased, made application to the Workmen's Compensation Board for compensation for his death. The Workmen's Compensation Board awarded the appellees the compensation they sought. On appeal to the circuit court the award of the Compensation Board was modified to the extent of an adjustment of the compensation based on a weekly wage of $15, which the deceased at the time of his accident was earning, instead of $18, as found by the board. As so modified, the award of the board was affirmed. From that judgment of the circuit court this appeal is prosecuted.

It is conceded by all parties that, if the appellees are entitled to any compensation at all, the modification of the board's award in the circuit court was proper, as the finding of the Compensation Board that the deceased was earning $18 per week, instead of $15, was made through inadvertence and through oversight of a stipulation of the parties that the weekly wage of the deceased was $15 per week.

As grounds for reversal, appellant insists, first, that there was no evidence to sustain the finding of the board that the death of William Carr, appellees' decedent, was the result of an accident he concededly sustained in the mines of the appellant in March, 1926; secondly, if in error as to this first proposition, that the board erred in failing to apportion the award between the results of the accident and those of a prior disease; thirdly, that there was no notice given by Carr of the accident; and, fourthly, that there is no evidence of the dependency of the appellees upon the decedent.

The decedent, in March, 1926, while working in the mines of the appellant, was shocked by coming in contact with an electric cable. He continued to work, however, that day and for two weeks thereafter, when the mines shut down for a short period. He did not return to his work when the mines reopened, and died the following June. It is true that the testimony produced by the appellant before the Compensation Board is to the effect that Carr died from tuberculosis which he had contracted prior to the accident, and that the electric shock he sustained in the mines in March had nothing to do with his death. But the testimony of the appellees before the board is to the effect that, while Carr did suffer with asthma prior to the shock, he did not have tuberculosis. Their witness, Dr. Ingram, testified that Carr's death was due to pulmonary edema, which was brought about by the electric shock he received in the March accident. Dr. Ingram also testified that Carr did not have...

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