Madden v. Black Mountain Corp.
| Decision Date | 17 March 1931 |
| Parties | MADDEN et al. v. BLACK MOUNTAIN CORPORATION. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Proceeding under the Workmen's Compensation Act by Rachel Madden and others for the death of her son, Harvey Madden, opposed by the Black Mountain Corporation, employer. An award of the Workmen's Compensation Board was reversed, and claimants appeal.
Reversed and remanded, with directions.
Pope & Huff, of Harlan, for appellants.
B. M Lee, of Harlan, for appellee.
The Black Mountain Corporation, on the 25th day of November 1929, was engaged in mining coal. Harvey Madden, its employee, while engaged in mining its coal, was injured "by reason of an accident arising out of and in the course of his employment," from which his death resulted. He left surviving him his mother, Rachel Madden his father, Isaac Madden, Jr., and infant brothers and sisters, George Madden, Ludie Madden, Mollie Madden, Mina Madden, and Harrison Madden.
An application was made by Rachel Madden and Isaac Madden, the mother and father of deceased, to the Workmen's Compensation Board for adjustment of their claim, based upon their own, and their infant children's, dependency upon the deceased. Testimony was taken, and on a trial the board awarded to the father and mother of deceased and five of his infant brothers and sisters, compensation at the rate of $5.85 per week, for a period of 385 weeks, with 6 per cent. interest on all past-due payments, and $75 for burial expenses. It found that they were partially dependent upon him, and, as such, were entitled to compensation. The appellant filed in the Harlan circuit court a petition for review of the award.
The circuit court adjudged "there was no evidence in the record to sustain the finding of the Board ***" and their claim therefore was dismissed by order of the court and the defendant adjudged its costs against the plaintiff, from which they appeal.
The appellee insists that Rachel Madden is an incompetent witness in behalf of her husband and her infant children, because (1) her testimony concerns transactions with a decedent; and (2) that she is the wife of Isaac Madden.
In the taking of her testimony she was asked and answered as follows:
"Q. Mrs. Madden, if Harvey during his lifetime and within twelve months last past next before he came to his death, contributed anything to your support in the way of money, groceries, clothing, or anything of that sort, yourself and the immediate family, tell the board what he contributed? (Defendant objects; sustained; plaintiff excepts.)
21. Did Harvey Madden contribute anything to your support? (Defendant objects: sustained; plaintiff excepts.)
A. Yes, sir.
Q. Were you a partial dependent of Harvey Madden? A. Yes, sir.
Q. Were you a dependent of Harvey Madden? (Defendant objects; sustained; plain tiff excepts.)
Q. Mrs. Madden, tell the Board whether or not any of the members of your family, including the children you have named, were depending in whole or in part on the support of Harvey Madden? (Defendant objects; overruled; defendant excepts.)
A. I drew his scrip. I depended on him for his part. (Defendant objects to the answer; sustained; plaintiff excepts.)
Q. Did he contribute any to the support of his brothers and sisters who were living in the same household that he was and you, in money or goods, or groceries or whatever it might be? (Defendant objects; overruled; defendant excepts.)
A. Yes sir, I handled his scrip card, I drew his scrip to buy groceries, feed for the cows, or whatever I had to have and gave me money to do the same with when he drew it."
The appellee, by objecting to the admission of this testimony before the board, thereby saved its right to object thereto in the circuit court and in this court.
Being the wife of Isaac Madden, the testimony of Rachel Madden in support of his claim was incompetent. Civil Code of Practice, § 606, subsec. 5. It was likewise incompetent in her own behalf by reason of subsection 2, § 606, Civil Code of Practice. Her testimony as a witness in her own behalf concerned verbal statements of a transaction with, or acts done by, the deceased.
The appellee insists that the claim of the infant brothers and sisters of deceased is joint and so interrelated with that of the mother, she being an incompetent witness for herself, is likewise incompetent to testify in their behalf. To support this contention it relies upon Gernhert v. Straeffer's Ex'r, 172 Ky. 823, 189 S.W. 1141; Dunbar v. Meadows, 165 Ky. 275, 176 S.W. 1167, and cases therein cited.
In the above cases, written instruments were attacked and a cancellation was sought. The rule announced in those cases has no application to the present one. The dependency of the mother, father, and infant brothers and sisters upon a deceased son and brother is not so interrelated as to constitute a joint dependency. The interest of the mother affected her credibility, but not her competency as a witness in behalf of her infant children. Benge's Adm'r v. Fouts, 174 Ky. 654, 192 S.W. 703; Harlan Fuel Co v. Swanson et al., 220 Ky. 449, 295 S.W. 406; Price et al. v. Louisville Hydro-Electric Co., 230 Ky. 562, 20 S.W.2d 448, 449. In such cases one dependent may testify for another, even though they and deceased were members of the same family at the time he came to his death. Harlan Fuel Co. v. Swanson et al., supra; Fordson Coal Co. v. Burke, 219 Ky. 770, 294 S.W. 497. It is shown by the testimony of the mother that Harvey Madden, the deceased, was 21 years of age, August 23, 1929; that he received his injury November 25, 1929, and died November 26, 1929. He was single and made his home with his father, mother, and infant brothers and sisters. He had been working for three years pretty regularly. He contributed to the support of his brothers and sisters who were living in the same household; his mother drawing his scrip and buying clothing for the children, groceries, and other household necessities, which were used for the benefit of the family, including the infant brothers and sisters. The father worked in timber at times, but not regularly. The deceased contributed to the support of the other young children by the month; their mother drawing his wages at the mine at any time. Mr. Marfell, chief clerk of the appellee, says that deceased began work at the mine March...
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