Mary Helen Coal Corp. v. Hensley

• Decision Date: 10 February 1931
• Parties: MARY HELEN COAL CORPORATION v. HENSLEY.
• Court: Kentucky Court of Appeals

35 S.W.2d 533

237 Ky. 348

MARY HELEN COAL CORPORATION v. HENSLEY.

Court of Appeals of Kentucky

February 10, 1931

Appeal from Circuit Court, Harlan County.

Proceedings under the Workmen's Compensation Act by J. J. Hensley employee, opposed by the Mary Helen Coal Corporation employer. From a judgment approving an award of the Workmen's Compensation Board, the employer appeals.

Affirmed.

A. G Patterson, of Pineville, for appellant.

J. S Golden, of Pineville, for appellee.

STANLEY C.

The appeal is from a decision approving an award of the Workmen's Compensation Board to the appellee, J. J. Hensley, for injuries sustained while employed by the appellant in its mine. A question of practice is to be first considered.

At the special September, 1930, term of the Harlan circuit court, the defendant's motion for a new trial was overruled, and it was given until the tenth day of the regular November term in which to file its bill of exceptions. Such a bill was prepared and filed on the ninth day of that term. The appellee has moved this court to strike the bill of exceptions from the record on the ground that the regular October term of that court had intervened, and, under section 334 of the Civil Code of Practice, the right to extend the time for filing a bill of exceptions is limited to a day in the next succeeding term. The motion should be sustained if a bill of exceptions is necessary in the case.

The Legislature vested in the Workmen's Compensation Board exclusive original jurisdiction over claims within the purview of the act. (Ky. St. §§ 4880-4987). Black Mountain Coal Corporation v. Murphy, 218 Ky. 40, 290 S.W. 1036. Section 4935 of the Statutes provides for a review of its action by the circuit court, which is restricted to the record certified to it by the board, except upon an allegation in the petition for review of fraud or misconduct of some person engaged in the administration of the act and affecting the decision of the board. The circuit court may hear additional evidence with respect to that charge. Nelson v. Kentucky River Stone & Sand Co., 182 Ky. 317, 206 S.W. 473; Workmen's Compensation Board v. Abbott, 212 Ky. 128, 278 S.W. 533, 47 A. L. R. 789. The scope of review by this court is likewise confined by section 4936. It is provided that: "The procedure as to appeal to the court of appeals shall be the same as in civil actions, so far as the same may be applicable to and not in conflict with the provisions of this act, except as follows." The exceptions relate to the abridgment of the bill of evidence. The whole procedure contemplates a review of the record made before the Workmen's Compensation Board as certified to the circuit court and again certified by the circuit court clerk to this court.

Of course, if there was evidence heard by the trial court on the allegations of misconduct, such evidence would have to be presented by an additional record or bill of exceptions, the correctness of which must be certified by the judge. That is the bill referred to in section 4936 of the Statutes. The sole purpose of a bill of exceptions is to bring before the Appellate Court the things that transpire on the trial that would not otherwise appear in the record. Broadway &amp Newport Bridge Co. v. Commonwealth, 173 Ky. 165, 190 S.W. 715. No bill of exceptions is required in an equity case, and we are of the opinion that it is not required in workmen's compensation cases except to cover the additional record indicated. In Workmen's Compensation Board v. U.S....