Kaycee Coal Co. v. Short

• Decision Date: 13 February 1970
• Citation: 450 S.W.2d 262
• Parties: KAYCEE COAL COMPANY, Appellant, v. Mary M. SHORT and Workmen's Compensation Board of Kentucky, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 262

450 S.W.2d 262

KAYCEE COAL COMPANY, Appellant, v. Mary M. SHORT and Workmen's Compensation Board of Kentucky Appellees.

Court of Appeals of Kentucky.

Feb. 13, 1970.

J. K. Wells, Paintsville, for appellant.

Jack L. Lewis, Paintsville, for appellees.

REED, Judge.

Charles Short, vice president and general manager of Kaycee Coal Company, a coal sales firm which operated a tipple, was killed in an automobile accident in April, 1967. At the time of the accident, he was en route from his home to the tipple. He was driving a truck owned by Kaycee; he was transporting some equipment to the tipple and was also transporting to the work site an employee of the coal sales operation and another employee of a related mining activity in which he was engaged. The Workmen's Compensation Board held that his death was work-connected and compensable and made an award to his widow. Kaycee, the employer, appealed this determination to the circuit court. From a judgment of the circuit court upholding this award, Kaycee appeals here. We affirm the circuit court's judgment.

The facts are not in dispute. The evidence before the board was that introduced by the widow of the deceased employee. It was uncontradicted. Charles Short and William Daniels incorporated Kaycee Coal Company. Kaycee leased a tipple and was primarily a coal sales company. The entity further undertook to develop, with a view to later leasing, a mining operation, Nan Fork Mine, from which they hoped to secure supplies of coal for Kaycee's services of sale. Short was the active manager and supervisor of Kaycee. He worked both administratively and manually in the operation and maintenance of the tipple and the sales operation.

Kaycee purchased and installed in Short's home: office furniture, an adding machine, and a telephone--all recurring expense charges on these items were paid by Kaycee. The truck Short drove was owned by Kaycee. Equipment used in the operation of the tipple was stored at Short's home. This was a regular and constant arrangement. Short had no prescribed hours of work at the tipple. Much of his work in managing the operation and selling the coal was done at his home which also served as the office of the operation as well as a warehouse, so to speak, for some of the necessary equipment used in the enterprise. Short's duties and the necessity and importance to Kaycee of the office in Short's home were established by the testimony of Daniels, Kaycee's majority stockholder and president.

The only direct evidence of what happened on the day of the accident was the testimony of the employee of Kaycee who was being transported to work by Short. This employee said that Short had loaded the truck with some equipment ordinarily used at the tipple; that Short drove the truck and the witness and another man, who worked in the mining operation Kaycee was attempting to develop, were passengers; that their destination was the tipple. From the pleadings it appears that while they were riding down the public highway on their way to the tipple from Short's home, a tree fell across the road and landed on top of the truck. Short was killed as a result of the mishap. The board found from the uncontradicted evidence that Short met his death in a work-connected accident that arose out of and in the course of his employment.

Kaycee first argues that the claimant's evidence failed to satisfy the burden of proof; it was not established that Short's death was caused by an accident arising out of his employment; that is, that there was a causal relationship between the accident and the employment. In Kentucky State Racing Commission v. Newton, Ky., 433 S.W.2d 873 (1968), the decedent was killed in an automobile accident after he left one work site and was allegedly on his way to another work site connected with his employment. The board was not persuaded from circumstantial evidence that his destination on the trip was the alleged second work site and, therefore, his death was held to be noncompensable. Although this determination by the board on the circumstantial evidence presented was not disturbed, we plainly inferred that had the board been persuaded otherwise, the opposite result would also have been binding on judicial review. Therefore, Newton, by plain inference, signaled that which became specific in George Petro, Inc. v. Bailey, Ky., 438 S.W.2d 88 (1968). In Bailey, compensation was upheld for employees who were injured in an automobile accident on the public highway while they were being transported from their employer's headquarters to another work site. Thus, in the instant case, if Short was killed while on his way from one work site to another work site of the same employment, the board's determination that compensation is allowable is binding.

While Kaycee attempts to suggest that the tree falling across the highway on top of the truck was an 'Act of God' and not a hazard peculiar to the employment, we can hardly believe this argument is seriously presented. Black v. Tichenor, Ky., 396 S.W.2d 794 (1965) reaffirmed and followed the positional risk...