Turner Day & Woolworth Handle Co. v. Pennington

• Decision Date: 29 September 1933
• Citation: 63 S.W.2d 490,250 Ky. 433
• Parties: TURNER DAY & WOOLWORTH HANDLE CO. et al. v. PENNINGTON.
• Court: Kentucky Court of Appeals

63 S.W.2d 490

250 Ky. 433

TURNER DAY & WOOLWORTH HANDLE CO. et al. v. PENNINGTON.

Court of Appeals of Kentucky

September 29, 1933

Appeal from Circuit Court, Warren County.

Proceeding by W. G. Pennington, employee, opposed by the Turner Day &amp Woolworth Handle Company, employer. From a judgment setting aside an award of the Workmen's Compensation Board, which denied compensation, and awarding compensation, employer and others appeal.

Affirmed.

Gavin H. Cochran and Robert F. Vaughan, both of Louisville, for appellants.

Stout &amp Herdman, of Bowling Green, for appellee.

DIETZMAN Justice.

This is an appeal from a judgment of the Warren circuit court setting aside an award of the Workmen's Compensation Board which had denied the appellee compensation and in lieu thereof awarding appellee compensation for injuries received in an accident which the court held arose out of and in the course of appellee's employment.

The appellee was injured on Saturday, the 6th day of December 1930. For quite a period of time prior to the day of the accident, the appellee had been in the employ of the appellant Turner Day & Woolworth Handle Company as a slab sawyer. The headquarters of the appellant handle company for the district in which appellee worked was at Bowling Green and here it was that appellee had his home and family. The company would send its crews out from Bowling Green to the respective locations where it was engaged in felling and preparing timber, but during such time as it had no timber to fell or it was unseasonable to fell timber it would bring its crews, and especially the key men thereof, as appellee was, to Bowling Green and keep them employed there, since it was difficult to get men of the type of appellee just to work periodically. At the time of the accident here in question, the appellant was having timber cut at Green Ridge, near Gordonsville in Logan county.

Appellee had been sent out from Bowling Green by the company to work in the crew which was felling and preparing this timber. His hours of labor were usually completed about 5:30 in the evening. During the week he lived at or nearby the scene of his labors. He was accustomed, however, to return to Bowling Green each Saturday night, going back to the scene of his labors on Sunday night. If requested by his foreman, he would on Sundays go to the place of business of appellant in Bowling Green with such messages as the foreman chose to send; it being the custom of the appellant to have some one of its office force in the office on Sunday morning to meet and talk with such of its men as came in from location. However, it is admitted that on the Saturday night when appellee was hurt he was carrying no message to the company's office at Bowling Green, and was returning solely to be at home over the week-end, and to see his wife, who was then ill. When appellee was first sent to this location at Green Ridge by the appellant, it was agreed that he could return to Bowling Green over the week-end whenever he wished, and that whenever he did so the appellant would pay his railroad fare to and from Bowling Green. Some time after he had been at work at Green Ridge, appellee bought himself a car, and, although the appellant questions it, the evidence is perfectly clear that appellant thereafter gave to appellee the oil and gas necessary to make the trip to and from Bowling Green or paid him in cash for such oil and gas as he had to buy to make the trip. On Saturday afternoon, December 6, 1930, appellee finished working at Green Ridge about 5:30. He took what gas he could find at the mill site and put it in his car, and then drove in to Russellville, which was on his way to Bowling Green. There he had supper. After buying some more gas in order to have enough to reach Bowling Green, he continued on his way to the latter city. While en route, one of the headlights of his car went out. He stopped the car by the side of the road and went around to the front to adjust the light when an automobile of some third party coming up from the rear ran into the back end of appellee's car, and thereby knocked it against him, injuring him very severely. It is for the injuries thus received that he made application to the Compensation Board for compensation. The board dismissed his claim, and on appeal to the circuit court the case was returned to the Compensation Board to make a separation of its findings of law and fact. This the board did. It found that the appellee was in December, 1930, in the employ of the appellant; that both he and the appellant had accepted, and were operating under, the provisions of the Workmen's Compensation Act of Kentucky (Ky. St. § 4880 et seq.); that the average weekly wage of the appellee was sufficient to justify the maximum compensation, if any should be awarded; that appellee's family resided in Bowling Green, and that he was boarding in Russellville; that he received traumatic injuries by accident while on his way from the mill at which he worked to visit his wife in Bowling Green; that the accident was caused as heretofore stated; that the trip to Bowling Green was being made by appellee solely for purposes of his own, viz., to visit his wife, who was sick, and said trip was in no way connected with the business of the appellant nor in any way connected with appellee's employment; that the accident occurred on Saturday night several hours after appellee's hours of employment for the day had ended, and at a point many miles removed from appellee's place of employment; that appellee was not being paid for his time by the appellant when the accident occurred; and that the accident was in no wise connected with appellee's duty as an employee of the appellant. The board then concluded that the injuries sustained by appellee in the accident did not arise out of or in the course of appellee's employment. Taking the position that, the facts in the instant case not being in dispute, the issue of whether the injuries arose out of and in the course of the employment was a question of law reviewable by the court, the circuit court held that on the facts stated the accident was one arising out of and in the course of appellee's employment, and sent the case back to the board to determine the amount of compensation that should be awarded. Acting under compulsion, the board found the amount of compensation to which appellee was entitled, if entitled to anything, but reiterated its position that in its judgment appellee was not entitled to any compensation. On return of the case to the circuit court, it entered a judgment for the amount of compensation which the board found appellee was entitled to if the accident arose out of and in the course of his employment, and it is from this judgment this appeal is prosecuted.

A preliminary question of practice may be at once disposed of. On his petition for review from the Workmen's Compensation Board's award, the appellee made the appellant and "the Workmen's Compensation Board of...