M. H. & H. Coal Co. v. Joseph

• Decision Date: 13 December 1957
• Citation: 310 S.W.2d 257
• Parties: M. H. & H. COAL COMPANY et al., Appellants, v. Everett JOSEPH and Workmen's Compensation Board of Kentucky et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 257

310 S.W.2d 257

M. H. & H. COAL COMPANY et al., Appellants, v. Everett JOSEPH and Workmen's Compensation Board of Kentucky et al., Appellees.

Court of Appeals of Kentucky.

Dec. 13, 1957.

Rehearing Denied March 14, 1958.

J. W. Craft, Jr., Craft & Stanfill, Hazard, for appellants.

French Hawk, Whitesburg, Joseph M. Kuczko, Norton, Va., for appellees.

STANLEY, Commissioner.

In this workmen's compensation case we have the unusual and difficult question of whether Everett Joseph, an appellee, had the status of an employee of the M. H. & H. Coal Company, the appellant, at the time he suffered an injury. If he occupied such relation, we reach another close question of whether the injury arose out of and in the course of his employment. A third question is whether there was any basis for computing the compensation allowance. The Board overruled a finding of a referee and decided that the employee was entitled to compensation, and the circuit court confirmed the award.

The mine is a small one with few employees. It seems to have been operated by Rex Cole and Charlie Holland under contract with the owner. Joseph and his brother, in response to an invitation by Cole, had gone to the mine on the morning of February 15, 1955, for the purpose of obtaining a job. They were told that Cole and Holland were in the mine and they went in and talked with them about a job. After Cole and Holland had eaten their dinner, they all went outside the mine and, according to the Joseph brothers and Holland, they were then hired on the basis of $1.10 per car of coal loaded and taken out. According to Cole, the negotiation was not completed and the men were not hired. On this issue the Compensation Board found Joseph had been hired, and the company on the appeal of course accepts that finding of fact. After the conclusion of the transaction of hiring, the men went back into the mine 'to get lined up for work,' as Lewis Joseph testified. Holland showed them where they were to work, and they talked about cleaning up some rock and 'this and that.' It is clearly shown the men were to go to work the next day.

Joseph's testimony as to the accident is quoted. 'So, when we got outside he [Holland] turned around and he said 'let's build a fire and wait until Rex Cole returns.' So, we engaged ourselves in building a fire. I lit a little piece of paper over there where they always have the fire, and Charlie Holland went inside a little building and gathered up some paper and stuff, and come out and put them on the fire, and immediately when it hit the fire,--when the paper caught a fire, it exploded, and when it exploded it stunned me for a minute, and I 'reach' to my face, and when I rubbed my face I got blood on my hands, and my hands was bloody.' It appears to have been a dynamite cap that exploded, although Holland thought it might have been a shotgun shell. As a consequence Joseph lost an eye.

The appellee contends that he had built the fire under instructions of the foreman. But his brother, Lewis, and Holland both testified that Holland had merely said, 'Boys, let's build a fire.' When Holland was pressed on the question whether that was a direction or order, he responded only, 'I said, 'boys.' I was talking to all of them.' Later when asked the leading question, 'You instructed Everett to build that fire, didn't you?', he answered, 'Yes, and I went in the shack and went to raking up that paper.' This can scarcely be regarded as a specific order by the mine foreman to the appellee to do something which could be regarded as being in the line of his work as a coal loader and hauler.

Whether one seeking benefits of the Workmen's Compensation Act, KRS 342.001 et seq., occupies the status of an...