McCune v. Wm. B. Pell & Bro.

• Court: Court of Appeals of Kentucky
• Writing for the Court: SETTLE, J.
• Citation: 192 Ky. 22,232 S.W. 43
• Decision Date: 14 June 1921
• Parties: MCCUNE v. WM. B. PELL & BRO.

232 S.W. 43

192 Ky. 22

MCCUNE
v.
WM. B. PELL & BRO.

Court of Appeals of Kentucky.

June 14, 1921

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division.

Proceedings under Workmen's Compensation Act by Mrs. Richard McCune for compensation for death of husband, Richard McCune, opposed by William B. Pell & Bro., employer. From judgment of circuit court affirming decision of Workmen's Compensation Board dismissing the petition, the claimant appeals. Affirmed. [232 S.W. 44]

Chas. W. Morris, of Louisville, for appellant.

Ernest W. Sprague, of Louisville, for appellee.

SETTLE, J.

The object of this appeal is to obtain of this court a review of an award of the Workmen's Compensation Board, and a judgment of the Jefferson circuit court affirming the award. The facts as found by the board from the evidence and upon which its award was based are as follows: The appellant and petitioner for the compensation refused by the board is the widow and dependent of Richard McCune, deceased; the appellees are contracting painters engaged in business in the city of Louisville. Richard McCune, a painter by occupation, fell from a scaffold, and was killed February 15, 1919, while in the employ of and at work for the appellees. McCune had at times, included within a period of 10 years prior to May 14, 1917, been employed in the performance of like work by appellees. But on May 14, 1917, upon again beginning work for them as a painter, after an interval of non-employment, he elected, as was his right, to operate under the statute known as the "Workmen's Compensation Act" (Laws 1916, c. 33, as amended by Laws 1918, c. 176) by then signing the employers' "compensation register declaring such election and purpose." On July 13, 1917, about two months later, McCune was dismissed from appellees' employ for lack of work for him to perform, and he thereupon obtained work at the Quartermaster's Depot, Jeffersonville, Ind., where he continued work under contract of employment until November 15, 1918, or for a period of 16 months, during which 16 months appellees had work at which they could or might have employed McCune.

After McCune quit work at the Quartermaster's Depot in Indiana, he was, on November 15, 1918, again employed by appellees, and, beginning with such contract of employment, November 15, 1918, he constantly worked for them until his death February 15, 1919, receiving weekly during that time wages averaging $22.10 per week. When employed by appellees November 15, 1918, McCune admittedly did not sign the compensation register, nor did he at any time thereafter do so.

After concluding its discussion of the evidence with the statement that, "according to the testimony in this case, McCune considered the advisability of signing [the register], and deliberately concluded not to sign," the board thus set forth its formal findings of fact:

"(1) Plaintiff's decedent at the time of the accident had not accepted the provisions of the Workmen's Compensation Act

(2) On May 14, 1917, he signed the compensation register as an employé of defendant. That particular employment ceased on July 13, 1917, and for a period of 16 months he worked in the Quartermaster's Depot at Jeffersonville, Ind. On November 15, 1918, he again commenced work for the defendant, but did not sign the compensation register."

The board's ruling of law upon the foregoing findings of fact was as follows:

"It is established by the terms of the act itself and by judicial determination that there must be an election on the part of the employé as to whether he will operate under the act; and, if he elects to operate thereunder, such election must be evidenced in writing."

Appearing beneath which is the award, signed by the members of the board, declaring:

"The petition for adjudication of claim is dismissed."

As previously stated, the award of the board was approved or affirmed by the circuit court upon a review of same and the evidence [232 S.W. 45] by that court, and upon the appeal to this court its duty is limited to consideration of the single question whether or not the facts as found and law applied thereto support the award. Ky. St. Supp. 1918, §§ 4935, 4936 (Workmen's Compensation Act, §§ 52, 53). In Phil Hollenbach Co. v. Hollenbach, 181 Ky. 285, 204 S.W. 162, it is declared, respecting the legal effect of the board's findings of fact:

"We perceive no material distinction between the findings of fact required to be made by a compensation board and that of a court or jury, and we believe such finding of fact of the board is entitled to the same weight as that of a properly instructed jury. This we conceive to be the general rule adopted by courts throughout the states of this country where the workmen's compensation law is in force."

While counsel for appellant substantially admits the correctness of the board's findings to the effect that the decedent had signed the compensation register under a former employment of him by the appellees May 14, 1917, that he severed his relation with appellees as an employé July 13, 1917, and for 16 months continuously thereafter was employed in another state by a different employer, and that upon his return to this state November 15, 1918, he was again employed by appellees under a new contract, different as to amount of wages from that of his employment of May 14, 1917, but without then or at any time thereafter signing the register evidencing his intention to operate under the Workmen's Compensation Act, he contends: (1) That the appellees' employment of the decedent from start to finish was "intermittent," and during his 16 months' absence, "temporarily suspended," within the meaning of these terms as employed in section...