Harlan Fuel Company v. Swanson

295 S.W. 406, 220 Ky. 449, 1927 Ky. LEXIS 539

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 7, 1927
• Status: Published

Opinion

Opinion op* the Court by

Commissioner Hobson—

Affirming.

Taft Swans on was in the employment of the Harlan Fuel Company- and was killed. Both had accepted the provisions of the Workmen’s Compensation Act (Ky. Stats., sections 4480-4987). His sisters, Rnth Swanson and Mand Swanson, filed application for compensation as fotal dependents of the deceased. The case was heard before one member of the board, who made an award in favor of the claimants. On motion of the Harlan Fuel Company, a review was had by the full board and the award theretofore entered was sustained by the board. Thereupon the Harlan Fuel Company brought this proceeding in the Harlan circuit court to review the action of the board. The circuit court refused to disturb the finding of the board. The Harlan Fuel Company appeals.

The only ruling of the board of which complaint is made is in these words:

“That Ruth 'Swanson and Maud Swanson were wfipfiy-dependent upon Taft .Swanson at the time of the accident.”

The only question presented by the record, is, was there any evidence to sustain this finding by the board? The sum of the facts proved are these: Ruth Swanson is A3_years_old; Maud is 22 and unmarried. A year-or more before Taft Swanson’s death he proposed to Maud Swanson that he would rent a house; that she and Ruth should live with him; he would pay the hous_e_rent and ah,-expenses ; and they would live together as one family. Under this arrangement, they lived in one house for some months and finally moved to another house. He worked about town, and later, while-living in this house, he went cff to the coal mine to work. But he continued to pay the rent as before and continued to pay family expenses. The house was still'his home when he was not at work. He bought the winter’s coal shortly before he was killed and had it pnt in the house. Maud’s occupation was housekeeper for her brother. tCHe 'purpose of the arrangement was to provide a home not only for the brother, but for the two sisters, especially Ruth, who was, going to school., Maud while living in this way sometimes cleaned house for another person or did some such work for pay, but her outside jobs were only occasional.

There, was no contrary evidence except that showing, that Taft drew a good part of his pay at the commissary,, but much of this may, in fact, have gone in the family expenses. The rule o_f the court is not do disturb , the find-} ing\ of the board if there is any evidence to sustain it. Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S. W. 936. Clearly here it cannot be said that there is no evidence to. sustain the .finding1 of the board. • ¡

It is urged that Maud Swanson and Ruth Swanson are each testifying for herself, and that under section 606 of the Civil Code, neither can testify for herself as to anything that her brother did, he being dead. But Maud Swanson may testify for Ruth to show that Ruth was a dependent, and Ruth may testify for Maud to show that she was dependent, 'for the dependency of one does not establish the dependency of the other. Benge v. Fouts, 174 Ky. 654, 192 S. W. 703. The testimony of each of them is sustained by the testimony of their sister, Mrs.. Sexton. No objection was made before the board to the: competency of the witnesses to testify. A failure to object before the compensation board to incompetent evidence waives the question on appeal. Maryland Casualty Co. v. Vidigoj, 207 Ky. 841, 270 S. W. 472.

Judgment affirmed.