Tyler-Couch Const. Co. v. Elmore

• Decision Date: 22 January 1954
• Docket Number: TYLER-COUCH
• Citation: 264 S.W.2d 56
• Parties: CONST. CO. v. ELMORE.
• Court: United States State Supreme Court — District of Kentucky

Page 56

264 S.W.2d 56

TYLER-COUCH CONST. CO. v. ELMORE.

Court of Appeals of Kentucky.

Jan. 22, 1954.

Wm. A. Hamm, Boyd F. Taylor, Jr., London, for appellant.

Roy W. House, Manchester, for appellee.

STANLEY, Commissioner.

The Workmen's Compensation Board denied compensation to Charlie Elmore, an employee of the appellant, Tyler-Couch Company, (perhaps correctly styled Couch Construction Company) on the ground that the injuries were sustained in horseplay. The circuit court vacated the Board's finding and rendered judgment for compensation and hospital bills, etc. in stated amounts. The judgment was in accordance with the recommendation of the referee, which had been rejected by the Board. The court expressed the opinion that the essential facts were not in dispute and that the finding of the Board was an erroneous application of the law to the proven facts.

In the course of the opinion, the judge stated that he personally knew the witnesses for the employer, especially Dan Wagers, and that he did not believe he was at the scene of the accident, as he testified. There had been no attempt to impeach Wagers or any other witness. The court was not free to decide the case de novo or to consider the credibility of the witnesses. As many times expressed, the function of the circuit court and this court as to the facts is to review the record to determine whether or not the finding by the Board is supported by any evidence of probative value. KRS 342.285(3)(d), 342.290; Inland Steel Co. v. Newsome, 281 Ky. 681, 136 S.W.2d 1077; H. Smith Coal Co. v. Marshall, Ky., 243 S.W.2d 40. In any event, the court, upon reaching the conclusion that the denial of an award was erroneous, should have remanded the case to the Board for proceedings in conformity with its directions. KRS 342.285; Black Motor Co. v. Spicer, 290 Ky. 111, 160 S.W.2d 336. It may be observed, however, that under some conditions a judgment of award, though technically erroneous, may be affirmed as an expeditious disposition of the case. Louisville Gas & Electric Co. v. Duncan, 235 Ky. 613, 31 S.W.2d 915.

The right to recover compensation for industrial disability rests upon double conditions being established, namely, that it resulted from an accident (1) occurring in the course of the employment, and (2) arising out of the employment. KRS 342.005.

It is unquestioned that the employee, Charlie Elmore, was injured while he was engaged in performing the duties of his job, that is to say, during the course of his employment. The question is whether the injuries were sustained 'by an accident arising out of' his employment. The term 'arising out of' involves the idea of causal relationship between the employment and the injury. W. T. Congleton Co. v. Bradley, 259 Ky. 127, 81 S.W.2d 912, 913.

In April, 1951, the claimant and other employees of the construction company were working at a railroad station unloading road oil from railroad cars into motor tank trucks. Employees of another company were engaged in loading lumber on railroad cars nearby. The men of the two crews had been horseplaying or pranking with one another during brief intervals of leisure. On the occasion of the accident, Elmore placed a bucket of burning kerosene under a valve in a tank truck to 'burn it out' so that the road oil would flow freely. According to Elmore's testimony, he had picked up the flaming bucket with a pole run under the handle, pulled the bucket out from under the truck and was carrying it, or had just put it down, when Enoch Cody, an employee of the lumber company, came along and kicked over the bucket. Elmore's clothing caught fire. He ran some fifty yards and jumped into the river, but suffered severe burns. Elmore testified that there had been no horseplay just before nor at the time of the accident. Cody testified that he and one of his fellow workmen had been 'acting the fool with one another' and he had suggested they go over and 'pick on' or 'whip' Charlie; that as he approached him, Charlie jabbed the stick on which he was carrying the flaming bucket and that he, Enoch, grabbed at it and stumbled in getting out of the way. In doing so, he had accidently tipped the bucket over. George Napier, who was Elmore's fellow workman, testified that while Elmore was removing the bucket from under the truck, Cody came up with a knife in his hand bantered Elmore, saying 'You fool with me and I'll come and get you' and then kicked the bucket over. Napier's testimony is to the effect that the accident occurred before Elmore had responded or participated in the horseplay. Dan Wagers, who seems to have been a mere onlooker and not a member of either crew, testified that Elmore was standing by the bucket of fire warming himself when Cody walked toward him with an open knife in his hand and then Elmore picked up the bucket on the stick and jabbed it at Cody, who then kicked it.

The Compensation Board found as the facts that the claimant and Cody were engaged in horseplay and that the claimant 'was not an innocent victim thereof.' The Board further concluded that 'the causation of the injury was not connected with the employment,' and ruled as a matter of law, as we have stated, that the resulting disability was not compensable. The courts must accept the facts as determined by the Board.

We first dispose of the appellee's contention that the Board should not have considered the evidence of...