Black Star Coal Company v. Collins

32 S.W.2d 540, 236 Ky. 39, 1930 Ky. LEXIS 673

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 11, 1930
• Status: Published

Opinion

Opinion op the Court by

Judge Clay

Affirming.

On December 18, 1928, Herbert Collins, while working for the Black Star Coal Company, received injuries which resulted in his death two days later. Both he and his employer had accepted, and were operating under, the provisions of the Workmen’s Compensation Act (Ky. Stats., Secs. 4880-4987). Thereafter John H. Collins, the father of the deceased, applied for compensation, which was denied by a single member of the board. On review, the full board held that John H. Collins was dependent upon the deceased to the extent of 25 per cent, and awarded him compensation at the rate of $3 a week for a period of 335 weeks, in addition to actual burial expenses not exceeding $75, with interest. On petition for a review to tbe Harlan circuit court, tbe award was affirmed, and the coal company appeals.

One of tbe contentions made by appellant is that tbe first award was a full board award, and is binding because no appeal was prosecuted to tbe circuit court witbin 20 days; or, if tbe first award was not a full board award, then tbe full board was without power of review, as tbe record does not disclose that tbe application for review was made witbin 7 days. Where tbe first order is followed by a motion for a whole board review, and tbe whole board makes an award, tbe two orders will be read together, and, in tbe absence of a contrary showing in tbe record, it will be presumed that tbe board proceeded properly, and that tbe first, order was by a single member, and that tbe motion for review was made witbin 7 days thereafter. ’ American Bituminous Coal Co. v. Ponder, 228 Ky. 776, 15 S. W. (2d) 507. Moreover, appellant is not in position to claim the contrary. In its petition for review by the circuit court it alleged that tbe first award was made by tbe board through its referee, William Dingus, and that thereafter, and witbin 7 days after the rendition of said award, tbe plaintiff, now appellee, filed bis motion for a full board review.

Inasmuch as it was agreed that tbe deceased was making a sum sufficient to authorize an allowance of $12 per week, dependency was tbe only question to be deter-' mined by the board. On this question John H. Collins testified without objection that several years ago be fell from a ladder and broke bis hip. Since that time be bad been an invalid and bad been supported by bis children. Not only bad bis son Herbert cooked for him, but be bad furnished him with clothing, provisions, and money, while be worked for tbe Black Star Coal Company, and while be worked at Pork Ridge prior to entering the service of tbe Black Star Coal Company. Virgil Collins, a brother of Herbert, testified that bis father was unable to earn anything, and that be and Herbert helped to take care of him. He and Herbert ran tbe same checks and worked together. When their father needed anything, it went out of bis and Herbert’s pockets. Out of bis and Herbert’s earnings be sent his father money. While tbe father was in Tennessee they sent him $10 at one time and $9 at another. They also sent him shoes, pants, shirts, a hat, and a sweater, all of which they purchased at the Black Star Store. B. A. Collins, another brother of Herbert, testified that their father lived for a while at his house, and while there he received, not only money but the various articles of clothing enumerated above. On the other hand, appellant introduced its records disclosing that Herbert’s earnings averaged no more than about $55 a month, accompanied by evidence that his board was worth about $1.25 a day. Inasmuch as there were other incidental expenses, such as washing, powder, and blasting paper, etc., it is insisted that he had nothing left to send his father, and that the case falls within the rule announced in Moles et ux. v. Three Points Coal Co., 227 Ky. 374, 13 S. W. (2d) 253. An examination of that case will show that there is no merit in this contention. There George F. Moles, the father of the deceased employee, testified that his son had sent him $100 at Christmas time in 1926 and $50 the following April. Notwithstanding this evidence, it appeared that when the deceased son returned home at Christmas he had practically no clothing, was almost frozen, and had hoboed his way from Texas. On this showing the board denied compensation. On appeal we held that the facts and circumstances were sufficient to render improbable the story told by the father, and that it could not be said that the board’s finding of fact was not supported by any competent evidence.

Here a different situation is presented. On the one hand we have positive evidence of contributions made by the deceased to his father’s support, and on the other an argument based on the fact that hi^ income was not sufficient to enable him to make any contributions. Clearly this made an issue of fact to be determined by the board, and, not being able to say that its finding of fact is not supported by any competent evidence, the award will not be disturbed. Golden Ash Coal Co. v. Davis, 220 Ky. 224, 294 S. W. 1029; Big Elkhorn Coal Co. v. Burke et al., 206 Ky. 489, 267 S. W. 142. •

Judgment affirmed.