Hysteam Coal Corp. v. Ingram

• Decision Date: 07 June 1940
• Citation: 141 S.W.2d 570,283 Ky. 411
• Parties: HYSTEAM COAL CORPORATION v. INGRAM et al.
• Court: Kentucky Court of Appeals

141 S.W.2d 570

283 Ky. 411

HYSTEAM COAL CORPORATION v. INGRAM et al.

Court of Appeals of Kentucky

June 7, 1940

Appeal from Circuit Court, Martin County; James F. Bailey, Judge.

Proceeding under the Workmen's Compensation Act by W. J. Ingram employee, opposed by the Hysteam Coal Corporation, employer. From a judgment sustaining the findings of the full Workmen's Compensation Board and dismissing a petition for review, the employer appeals.

Judgment reversed with directions.

TILFORD J., dissenting.

J Woodford Howard and W. P. Mayo, both of Prestonsburg, for appellant.

Wheeler & Wheeler and Fred Meade, all of Paintsville, for appellee.

SIMS Commissioner.

On May 22, 1934, the appellee, W. J. Ingram, was severely injured by an explosion of power while employed in appellant's mine. Both parties had accepted the provisions of the Workmen's Compensation Act, and although application for compensation was executed by appellee on December 14, 1934, for some unexplained reason it was not filed with the Workmen's Compensation Board, hereinafter referred to as the Board until May 18, 1935. A hearing was set at Inez, Kentucky, for July 13, 1935, and upon failure of appellee or his attorney to appear, the hearing was continued to September 30th. Again, neither appellee nor his attorney appeared, and appellant on that day moved Hon. W. H. Flanary, referee, to dismiss the claim for want of prosecution. Pursuant to this motion, the Board entered this order on October 15, 1935: "It is ordered that this case be, and the same is hereby, dismissed for lack of prosecution."

No further action was taken in the case until January 20, 1937, when Mr. C. F. Pace, the attorney for appellee, filed a motion with the Board asking that the application be redocketed and set for hearing. Mr. Pace supported this motion by his affidavit averring he had no notice of the hearing held at Inez on September 20 (evidently meaning September 30), 1935, and that the first information he had of such hearing was the receipt of a copy of the order entered October 15, 1935; that had he received such notice he would have appeared and represented his client. It is worthy of mention that his affidavit did not state when he received the copy of the order entered October 15th, although we assume it was within a reasonable time after it was entered, which in all likelihood was within a few days after October 15, 1935.

On February 19, 1937, appellant filed a special demurrer to appellee's motion to redocket on the ground that the Board had lost jurisdiction of the case when a full Board review was not asked within seven days after the case was dismissed, as required by Sec. 4934, Ky.Stats. On the same day in support of the special demurrer appellant filed a pleading styled "resistance to motion to redocket", in which it averred the Board gave the attorneys on each side notice of the hearing set for July 13, 1935, and that the records of the Board show each attorney was given due notice of the hearing set for the following September 30th, at Inez. By an "amended resistance to motion to redocket", it is pleaded that appellee had prosecuted no appeal to the circuit court from the order dismissing as required by Sec. 4935, Ky.Stats. On March 16, 1937, the Board overruled appellee's motion to redocket.

On April 13, 1937, Mr. Fred Meade, as attorney for appellee, filed a motion asking the Board to set aside the orders of October 15, 1935 and of March 16, 1937, because these orders were entered by fraud or mistake and that appellee was never notified by either the Board or his attorney when the case was set for hearing. On June 1, 1937, appellant's special demurrer to this motion was overruled, and the Board ordered the case "reopened and redocketed for further trial".

Appellant filed answer to appellee's claim for compensation setting out in detail the various steps as above outlined, and pleaded that the Board had no jurisdiction to hear appellee's second motion to reopen the case after having overruled his first motion asking this same relief on the same grounds; that the Board had no jurisdiction to conduct a hearing of the application on its merits and that appellee was barred by the statutes of limitation from now asserting a claim for compensation. Appellee's reply completed the issue and proof was heard as to his injuries and the extent of his resultant disability. A referee awarded him $15 per week for temporary total disability for 46 weeks and 45% permanent partial disability for 289 weeks to be credited by $241.96 appellant had paid him for temporary total disability, and subject to the further credit of $30.90 he owed appellant on account; the award also included medical bills not exceeding $200. A review by the full Board on appellant's motion resulted in a reduction in appellee's permanent partial disability from 45% to 25%, and in his medical expenses from a sum not exceeding $200 to a sum not exceeding $100. Within the statutory period, appellant filed his petition in the Martin Circuit Court for a review of the finding of the full Board, raising the question of the Board's jurisdiction to hear this cause after it had dismissed same for want of prosecution and after it had overruled appellee's first motion to reopen. The circuit court sustained the findings of the full Board, dismissed the petition for review and this appeal followed.

Appellant does not seriously contend that the evidence fails to support the findings of the Board relative to appellee's disability and the award made him. The sole question presented by this appeal is whether or not the Board could sustain a second motion made on April 13, 1937, to reopen the case because of appellee's alleged failure to receive notice of the hearing after it had overruled his first motion made January 20, 1937, on this same ground.

Appellant takes the position that when the Board dismissed appellee's application for want of prosecution, this had the effect of dismissing without prejudice, and he was in the same position as if no application had been filed; that if we do not accept this view and hold the Board had jurisdiction to reopen the case on motion, then when the Board overruled appellee's first motion to reopen, this became res judicata on the second motion on the same grounds contained in the first. Appellee argues that under Sec. 4902, Ky.Stats., the Board had authority at any time during the period for which he was entitled to receive compensation, upon the application of either interested party, or upon its own motion, where there has been a change of conditions, mistake or fraud, to reopen and review any order made by it.

The unyielding rules of law do not apply in Workmen's Compensation cases and we are not prepared to say that where the Board dismissed an application for want of prosecution under the alleged mistaken belief that the claimant or his attorney had received notice of the hearing and chose not to prosecute same, it might not set aside such...