Johnson v. Hardy-Burlingham Mining Co.

• Decision Date: 28 November 1924
• Citation: 205 Ky. 752
• Parties: Johnson, et al. v. Hardy-Burlingham Mining Company, et al.
• Court: Kentucky Court of Appeals

Page 752

205 Ky. 752

Johnson, et al. v. Hardy-Burlingham Mining Company, et al.

Court of Appeals of Kentucky.

Decided November 28, 1924.

Appeal from Perry Circuit Court.

J. B. ADAMSON and TALBOTT & WHITLEY for appellant.

HOLLY W. FLUTY and BEVERLY R. JOUETT for appellees.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

This proceeding chiefly involves the procedural provisions of our Workmen's Compensation Act, being sections 4880, 4987 inclusive of the 1922 edition of Carroll's Kentucky Statutes. Such statutes have for their purpose the furnishing of a speedy and scientific adjustment of compensation for industrial injuries arising out of and occurring in the course of the servant's employment. Besides abolishing the old common law remedies as well as defenses for the recovering of compensation to the injured servant, the statutes provide entirely new machinery which they substitute for the law courts in the prosecution of claims before the board provided in the acts for making the compensation awards, and it is the policy of courts, including this one, to construe the provisions of the act liberally so as to accomplish the purpose intended by its enactment. Especially is that true with reference to the procedure provided for, and whenever it appears that the steps taken by the one whose duty it is to do so are in substantial compliance with the terms of the statute, and, as taken, are effectual for the purpose of fully protecting the interests of the adverse party or parties, they will be upheld notwithstanding there might not be a literal compliance with the statutory provisions. Cases from this court since the enactment of our statute adopting such rule of construction are: Hollenbach Co. v. Hollenbach, 181 Ky. 262; Bates & Rogers Construction Co. v. Allen, 183 Ky. 815; Frye's Gdn. v. Gamble Bros., 188 Ky. 283; Workmen's Compensation Board v. U. S. Coal & Coke Co., 196 Ky. 833, and Ashland Iron & Mining Co. v. Daniel, 202 Ky. 19. But of course it is not meant by the adoption of that liberal rule to entirely dispense with mandatory requirements, for if they are not substantially performed and observed, the party in default will be deprived of the remedies and reliefs contained in the statute. With these observations in mind we will proceed to consider this case upon its merits.

On May 8, 1919, Lewis P. Johnson was employed by the Hardy-Burlingham Mining Company as a workman in its coal mine and both the employer and the employee were operating under our Workmen's Compensation Act. On that day a piece of slate fell upon Johnson while he was at work in the mine, inflicting injuries upon him from which he soon thereafter died, and the accident as well as the consequent injury was such as is compensable under the act. In 1912 Johnson had married the appellant, Bertha Johnson, and about two years thereafter a child, the appellant Lewis Frank Johnson, was born as the result of that marriage. About the time of the birth of the child, Lewis P. Johnson abandoned his wife, who retained custody of the child, and he disappeared from the home. He did not contribute to the maintenance and support of either his wife or child at any time thereafter, nor was he ever divorced from his wife, which left the bonds of matrimony between them subsisting at the time of his death. However, some two years or more before his death, and without the knowledge of his first wife, the appellant, Bertha Johnson, he married another woman known in this record as Cora Johnson and with whom he lived at the time of his death. She, under the provisions of the statute, entered into an agreement with the employer of her supposed husband and the company insuring it whereby she was to receive the full compensation provided for a surviving dependent widow less 15 per cent, which reduction was made pursuant to section 4910 of the statute upon the ground that the accident to the deceased employee was caused or partially caused by his intentional failure to observe a lawful and reasonable rule, regulation and direction made and given by his employer. That agreement was, under the provisions of the statute, made the award of the board and Cora Johnson received payment thereunder for something like one year. About eight or nine months after the death of L. P. Johnson, his lawful wife, the appellant Bertha Johnson, learned for the first time of his death, and for some months following that information she seems to have been trying to collect some small amounts of industrial insurance on the life of her deceased husband.

After more than a year had elapsed from the time of his death, Bertha Johnson made formal application to the Workmen's Compensation Board for an allowance to her and her infant child as the sole dependents of the deceased, and Cora Johnson was made a party to that application. Upon a hearing before the board, at which evidence was introduced, it discontinued the allowance to Cora Johnson and dismissed the application of Bertha Johnson and her infant son upon the ground that the application was barred because it was not made within one year after the death of the employee, as is required by section 4914 of the statute; and it disallowed the claim of the infant child of Bertha Johnson upon the additional ground that he was not a dependent under the provisions of section 4984 of the statute so as to entitle him to compensation for the death of his father because under clause (c) of that section he was not living with his deceased parent nor was he then or had ever been actually supported by the deceased. This proceeding by way of appeal to the circuit court by the filing of a petition therein for a review of the finding of the board then followed, and upon a hearing in that court the award of the board was confirmed, and to review that judgment this appeal is prosecuted.

Numerous grounds for a reversal of the judgment are...