Phil Hollenbach Co. v. Hollenbach

• Decision Date: 21 June 1918
• Citation: 204 S.W. 152,181 Ky. 262
• Parties: PHIL HOLLENBACH CO. v. HOLLENBACH.
• Court: Kentucky Court of Appeals

204 S.W. 152

181 Ky. 262

PHIL HOLLENBACH CO. v. HOLLENBACH.

Court of Appeals of Kentucky.

June 21, 1918

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

Proceedings by Anna Hollenbach for workmen's compensation, opposed by the Phil Hollenbach Company, employer. After the hearing before the board, the United States Fidelity & Guaranty Company, insurer, filed petition to be made a party and to be allowed to appeal, which was granted. To review a judgment of the circuit court confirming an award of the commission in favor of applicant, the employer and insurer appeal. Affirmed.

Dallam Farnsley & Meane, of Louisville, for appellant.

Dodd &amp Dodd, of Louisville, for appellee.

SAMPSON J.

This is the first appeal to reach this court from an award by the board which administers the Workmen's Compensation Act, and it presents many features which are entirely novel in our jurisprudence.

The Phil Hollenbach Company was engaged in the wholesale liquor business on Main street, in Louisville, at the time of the accident and death of Phil Hollenbach, Jr., in August, 1916. This firm was operating under the Workmen's Compensation Act of 1916, carrying indemnity insurance with the United States Fidelity & Guaranty Company, of Baltimore. More than five persons were regularly engaged by this company in the same occupation or business, as provided by the act, at the time of young Hollenbach's death. He was 23 years of age, married, and the father of a child about 3 months old. His dependents, therefore, are the widow and infant child. He was earning $16 per week, and was foreman of a gang of four men who, with him, were employed in the basement. The company used electric lights for illuminating the basement and its different compartments, including the toilet. He had been engaged as cellar foreman by this firm for several years, and was a strong, able-bodied, faithful, and efficient employé. Upon the day of the accident he had been engaged in bottling wines and placing the same upon shelves in the basement. The weather being warm, he wore very light clothing. A few minutes before 6 o'clock in the afternoon, which was the end of the period of labor, Hollenbach called to his fellow workmen and said:

"Let's get ourselves ready to go home; call Bill Koelin and tell him not to forget to close the door."

He then went to the washbasin which was provided for the use of the workmen in the basement, presumably for the purpose of washing himself preparatory to going home. Immediately thereafter he gave a cry of distress, and his fellow workmen, responding to his cry, found him lying on the floor on his back across an uninsulated electrically charged wire, which passed up over the lavatory and over a wooden partition of the water closet to a connection with a socket of a swinging electric light wire which came down inside of the water-closet. Hollenbach was not dead, and his companions undertook to remove him from off the wire, and in endeavoring to do so were themselves thrown back by the current. Finally some one had the presence of mind to turn the switch which broke the current. Hollenbach was still breathing, but unconscious. A physician was immediately called, and every effort made to resuscitate Hollenbach, but without result, and he shortly thereafter died. The floor where he was lying was wet, as was also his clothing. Across his back the uninsulated wire charged with electricity had burned through his clothing and into the flesh to a depth of about one-sixteenth of an inch. No autopsy was held before the body was embalmed. The wire which carried the electric current which burned Hollenbach served no useful purpose to the Phil Hollenbach Company, and how it became connected with the electric light socket in the manner described is not proven in this record. Each of the workmen employed in the basement with Hollenbach testify that they did not know of the connection of the wire with the socket, and had never observed it in that position, although they say that this wire had previously formed a coil spring and had been straightened out and was used in the basement for sulphurizing and cleaning barrels. It is suggested, but not proven, that either Hollenbach, or one of his associates, had sportively placed the wire in the electric light socket and brought it down over the washbasin so that when the water should be turned on a shock would be experienced by the person at the basin.

Immediately after the accident the electrict light and power people made investigation to ascertain the voltage carried by the electric light wires in the basement at the time of the accident, and it was found to be only of a frequency of 114 volts. This, it is urged, was not sufficient to produce death in a man of the size and strength of Hollenbach unless he had a defective or weak heart. True, the weight of the evidence is to the effect that 114 volts of electricity will not ordinarily produce death where applied only for an instant, but it is insisted by the widow that the continuation of such voltage through the human body for the duration to which Hollenbach was subjected would produce death, and the evidence upon this point is sufficient to support the finding of the board that the death of Hollenbach resulted from an electric shock.

In October following the accident Anna Hollenbach, widow of the deceased, made application to the Workmen's Compensation Board of this state for an award under the provisions of the act. In doing so she filed her claim with the board upon the printed application blank. The application set forth that Phil Hollenbach, Jr., was killed on August 11, 1916, by reason of accident arising out of and in the course of his employment with the Phil Hollenbach Company. She claimed $4,000 for his death in addition to medical care and attendance. Shortly thereafter the Phil Hollenbach company filed with the Board of Compensation its answer to the application, the first paragraph of which is a denial of its responsibility. The second paragraph of the answer is as follows:

"Further answering, defendant states that when the decedent, Phil Hollenbach, met his death at the time and date set out above, the said electric shock was not received by him by accident arising out of or in the course of his employment. Defendant states that the wire complained of was a loose wire which had been brought to the place of employment by the decedent, Phil Hollenbach, that it was an old coiled door spring which had been straightened out by the decedent, Phil Hollenbach, and that it was placed over and around the socket by the decedent, Phil Hollenbach, and that it was not necessary and was not in the course of his employment and was not so used, and that the said decedent, Phil Hollenbach placed it there with the intention of connecting it with the faucet on the washstand, in order to play a practical joke on his fellow employés, who would receive a shock when the water was turned on and the current thus completed. Defendant says that the current of electricity was not at the time more than 114 volts, and that 114 volts current of electricity is not sufficient and will not cause the death of a person, and that the death of said Phil Hollenbach was not caused by accident, and was not caused by the current of electricity coming from the socket, though the wire was around the same. Defendant states that the decedent, Phil Hollenbach, received the current of electricity and came to his death because of his own willful misconduct or by a willfully self-inflicted injury, and it was not such an accident as is contemplated by the act known as the Workmen's Compensation Act, for individual accidents in the state of Kentucky. Wherefore, having fully answered, this defendant prays to be dismissed hence, with its costs and all proper relief."

The affirmative allegations of the answer were duly traversed by the applicant. Thereafter, on November 9, 1916, at the office of the board in Louisville, testimony was heard. This evidence was taken in shorthand, and has been transcribed and is now a part of the record in this court, having been certified by the board, as provided by section 52 of the act. This cause before the Workmen's Compensation Board was styled "Anna Hollenbach, Plaintiff, v. The Phil Hollenbach Company, Defendant. After the hearing of the case before the board the United States Fidelity and Guaranty Company, who issued the policy of insurance indemnifying the Phil Hollenbach Company against loss, in accordance with the Workmen's Compensation Act, filed its petition in the circuit court to be made a party and to be allowed to prosecute an appeal from the award of the board. That petition is in words and figures as follows (omitting the caption):

"Petition for Appeal.

The United States Fidelity & Guaranty Company of Baltimore, Md., says that it is a corporation organized under the laws of Maryland and is authorized to do business and write insurance in the state of Kentucky, and that it has written a policy under the Workmen's Compensation Board with Phil Hollenbach Company.

The matter set forth in the petition covering the accidental death of an employé of the Phil Hollenbach Company was heard and determined by the Workmen's Compensation Board, which determination was, in the opinion of this carrier of insurance, invalid and erroneous, and it desires that an appeal be taken and its right heard and protected. It says that Phil Hollenbach, president of the insured, refuses to sign and verify the petition, and that the law requires a verification of a petition before the appeal from the award or decision or finding of the board can be taken.

Wherefore the United States Fidelity & Guaranty Company comes and prays ...