Motors Ins. Corp. v. Com., Dept. of Highways
Decision Date | 03 June 1960 |
Citation | 336 S.W.2d 44 |
Parties | MOTORS INSURANCE CORPORATION, a corporation, et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee. |
Court | Supreme Court of Kentucky |
Wm. A. Young, Frankfort, M. B. Fields, Hazard, for appellants.
Hafford E. Hay, Frankfort, for appellee.
STANLEY, Commissioner.
A collision occurred in Breathitt County on December 20, 1956, between a new Cadillac automobile owned and driven by William Burke and a truck of the Department of Highways. Burke suffered personal injuries and his automobile great damage. He filed with the Board of Claims (KRS 44.070 et seq.) a complaint against the Department of Highways seeking recovery of $4,500 for his injuries and special consequent damages. Motors Insurance Corporation, under a casualty policy of insurance of the automobile, paid Burke $2,586.90. The policy provided for $100 deductible from the amount of actual damage, which sum was borne by Burke. A joint claim for $2,686.90 was filed by Burke and the insurance company as his subrogee.
The claims were consolidated. A referee of the Board of Claims heard the evidence and filed what he denominated 'Findings of Fact, Conclusions of Law and Recommendation.' The 'Findings of Fact' recited the pleadings and gave a summary of the evidence but made no definite finding except as the same is implicit in the 'Conclusions of Law,' which was that Burke was guilty of contributory negligence. The report added that 'even if' the truck driver was also negligent, Burke had the 'last clear chance' to avoid the collision and must be held wholly responsible for the accident.
The Board of Claims dismissed the claims on the ground that no exceptions had been filed to the referee's report and recommendation.
We find no authority in the statute for the appointment by the then constituted Board of Claims of a referee to hear evidence and make recommendations, or, of course, for the filing of exceptions to any report. (See Amendment, 1960 session of General Assembly.) The statute read, 'Each hearing shall be conducted by one or more members of the board.' KRS 44.070(5). It further directed that the Board should 'consider the entire record and dispose of the claim.' KRS 44.070(6). Another section prescribed that an 'award or judgment shall be made only after consideration of the facts surrounding the matter in controversy.' KRS 44.120. It appears that the Board did not even consider the evidence taken by the 'referee' but disposed of the cases as by default.
The appellee rests its case solely on the provision of the statute that on an appeal the circuit court is limited to determining 'whether the findings of fact support the award.' As no 'award' was made, the term must be construed as 'decision.' Since the Board did not...
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