Kentucky Distilleries & Warehouse Co. v. James

• Decision Date: 24 October 1924
• Citation: 265 S.W. 629,205 Ky. 185
• Parties: KENTUCKY DISTILLERIES & WAREHOUSE CO. v. JAMES ET AL.
• Court: Kentucky Court of Appeals

265 S.W. 629

205 Ky. 185

KENTUCKY DISTILLERIES & WAREHOUSE CO. v. JAMES ET AL.

Court of Appeals of Kentucky.

October 24, 1924

Appeal from Circuit Court, Jessamine County.

Proceeding by Isaac James under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Kentucky Distilleries & Warehouse Company, the employer. An award of compensation by the Board of Compensation was affirmed, and the employer appeals. Affirmed.

William M. Duffy, of Louisville, and John H. Welch, of Nicholasville for appellant.

J. W Swope and J. E. Robinson, both of Lancaster, for appellees.

SAMPSON C.J.

The question for decision upon this appeal is, whether an injury resulting in the loss of a leg, even though the leg is not amputated, should be compensated for, under the specific schedule set forth in section 4899, Kentucky Statutes (Workmen's Compensation), or whether the award should be regulated as to amount under the last paragraph of that section of the statute, which reads:

"In all other cases of permanent partial disability, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employee compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, the nature of the physical injury or disfigurement, the occupation of the injured employee, and age at the time of injury."

The company admits liability, and further, that section 4899 governs the amount of its liability; but it says that the literary paragraph in the section, reading, "for the loss of a leg, sixty-five per cent. (65%) of the average weekly wage during 200 weeks," controls, and that the last literary paragraph of that section has no application to the facts of this case.

Appellee James, a farmer, was employed by the warehouse company as night watchman, and was on duty at the time the accident happened, which resulted in his injury. Observing that a window to the warehouse appeared to have been tampered with, appellee placed a ladder against the wall and climbed up to see about it. He was in the line of his duty. As he came down the ladder, his coat hung, upsetting his pocket from which a pistol fell onto the floor or ground, causing it to be discharged; the bullet striking him in the thigh just above the knee, shattering the bone, and causing him a very painful and disqualifying injury. He was sent to the hospital, where he remained for many weeks. When his wound healed, it was found that his leg was not only stiff, but that it was paralyzed, and he had no use of it. Several of the vertebræ immediately above the pelvis were affected by the injury, and his back and side were in part paralyzed. The medical men who testified concerning his injury stated that the paralysis caused by the bullet wound had ascended to his hip, and in fact to the end of the sciatic nerve, apparently to this origin. It is stated that the condition of the nerve above the injury is what is known in the scientific world as "ascending degeneration." The Board of Compensation, after hearing the facts, delivered a finding and award, in part, as follows:

"The board, from the consideration of the testimony, and all the facts and circumstances in the record of this case, is of the opinion, and so holds, that plaintiff's injury arose out of and in the course of his employment, and that notice of said injury was given to defendant, as is required by the Compensation Act. The plaintiff, at the hearing of this case, on August 2, 1922, testified that he was unable

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