Stearns Coal & Lumber Co. v. Ball

• Decision Date: 01 March 1927
• Citation: 218 Ky. 607
• Parties: Stearns Coal and Lumber Company v. Ball, et al.
• Court: United States State Supreme Court — District of Kentucky

218 Ky. 607

Stearns Coal and Lumber Company v. Ball, et al.

Court of Appeals of Kentucky.

Decided March 1, 1927.

Master and Servant — Death of Company's Police Officer, Also County Patrolman, in Quelling Disturbance of Assemblage, in Company's Hall, Held in "Course of Employment" — "Accident" (Workmen's Compensation Act, Section 3; Ky. Stats., Sections 3780-3786). — Where company employee was charged with duty of making arrests for violations of law on company property, death, in attempting to arrest persons who were shooting on highway, and disturbing people in assembly hall adjacent, held to have occurred by accident arising out of and in "course of employment," under Workmen's Compensation Act (Ky. Stats., section 4882), where assembly hall and all other buildings in community belonged to company, though deceased was also county patrolman appointed under Ky. Stats., sections 3780-3786, authorized to preserve peace and arrest law violators, disturbing assemblage being in violation of law under section 1267.

Appeal from McCreary Circuit Court.

WILLIAM WADDLE and A.E. DENTON for appellant.

H.M. CLINE for appellees.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Affirming.

Appellee, Mattie Ball, was awarded compensation by the Kentucky Workmen's Compensation Board at the rate of $12.00 per week for a period of 335 weeks, with interest on past due payments, and burial expenses not to exceed $75.00, in an application for compensation made by her on account of the death of her husband found by the board to have occurred by accident arising out of and in the course of his employment with appellant, upon evidence that both the employer and employee had elected to operate under the provisions of the Kentucky Workmen's Compensation law. Appellant prosecuted an appeal from the award of the board to the McCreary circuit court, and, upon trial there, the judgment of the compensation board was affirmed. This appeal is prosecuted from that judgment.

A brief statement of the facts appearing herein is necessary to a proper determination of the questions presented by appellant. It is a corporation owning large areas of coal and timber lands in McCreary county in this state and is engaged in mining and marketing coal and in cutting, manufacturing and marketing its timber and timber products therefrom. Its chief place of business in this state is Stearns, in McCreary county, Kentucky, and at that place it operates a large industrial plant in connection with its mining and timber business. Though there is sufficient population at this place, consisting of its employees, no municipal organization has been effected, and appellant owns the town-site and all of the buildings therein which house its various industrial operations and its employees and their families. It appears that one of the public state highways runs through appellant's town-site. Appellee's intestate at the time of his death had been appointed and qualified as a county patrolman of McCreary county, under the provisions of chapter 95, Kentucky Statutes, and was receiving from the county a salary of $30.00 per month. He was living in the town of Stearns, Kentucky, and under employment from appellant was being paid $75.00 per month as salary; was carried regularly on its payroll and paid as its other employees were. There is no contention but that both he and appellant had elected to operate under the protection of the compensation act. Among other buildings in its town appellant had erected a public assembly hall where moving pictures appear to have been regularly shown. The night appellee's intestate met his death it appears that the American Legion was giving some sort of exhibition in that building, and as was customary appellee's intestate was present. After the performance had begun and while a large crowd of people were assembled a number of shots were fired outside the building to the disturbance of those present. Appellee's intestate, who was standing near the entrance to the building, immediately left, and shortly afterwards other shots were fired. Considerable excitement arose among those assembled at the picture show house, and subsequent investigation disclosed that someone had shot and killed appellee's intestate a short distance from the picture show building, he being found lying near the public highway which runs through appellant's town.

Appellant insists that the record affords no evidence that it was any part of the duty of appellee's intestate under his employment from it to apprehend or arrest any persons for violations of the criminal laws of our state, and that in attempting to arrest the persons who, on this occasion, were guilty of discharging firearms on the public highway in front of the picture show building and in coming to his death while so doing appellee's intestate was not performing any duty arising out of and in the course of his employment, but was in the performance of the duty enjoined upon him as a peace officer under his appointment as county patrolman of McCreary county, and hence that the award of the board is without evidence to support it, and unlawful, and should be reversed.

The chief timekeeper employed by appellant corporation at Stearns, Kentucky, who testified that he kept the payrolls and records showing the payments to its various employees, testified as a witness for appellee upon the hearing of this proceeding before the compensation board, and, after testifying that Farris Ball, appellee's intestate, received a salary of $75.00 a month from appellant, testified further as follows:

"Q. What was he paid for? A. Special agent for the Stearns Coal & Lumber Company. Q. Special officer for them? A. Yes, sir. Q. How long did he perform those duties? A. I don't know. He was special agent when I come to Stearns. Q. How was this money paid him? A. Through the payroll like...