Elkhorn Coal Co. v. Stout

• Decision Date: 29 January 1943
• Citation: 293 Ky. 51,168 S.W.2d 332
• Parties: ELKHORN COAL CO. v. STOUT et al.
• Court: Kentucky Court of Appeals

168 S.W.2d 332

293 Ky. 51

ELKHORN COAL CO. v. STOUT et al.

Court of Appeals of Kentucky

January 29, 1943

Appeal from Circuit Court, Letcher County; R. Monroe Fields, Judge.

Proceeding under the Workmen's Compensation Act by Harrison Stout claimant, and others, opposed by the Elkhorn Coal Company employer. From a judgment affirming an award of the Workmen's Compensation Board granting compensation, the employer appeals.

Reversed.

Harry L. Moore, of Whitesburg, for appellant.

Pope &amp Pope, of Knoxville, Tenn., and French Hawk, of Whitesburg for appellees.

STANLEY Commissioner.

Harrison Stout suffered industrial blindness as the result of lightning striking a tree above the mine and the electricity passing through a crevice in the earth down 112 feet to where he was working. We held the injury compensable and directed a judgment ordering the Workmen's Compensation Board "to render an award in accordance with the proof in the case, and for other proceedings not inconsistent with this opinion." Stout v. Elkhorn Coal Company, 289 Ky. 736, 160 S.W.2d 31, 33. The circuit court accordingly remanded the case to the Board. Upon the evidence theretofore taken it found Stout's average weekly earnings to be $21 and made an award of $13.65 a week for a period of 416 weeks not to exceed $6,000 in amount. The circuit court upon the employer's petition for review expressed the opinion that the Board should have found the employee's average weekly wage to have been $17.02 instead of $21, with the consequent reduction in the award to $11.05 a week, but that the court was without power to correct it because there was "competent, substantial evidence" to sustain the finding. The opinion of the court recites: "The evidence may not be as clear and convincing either way as it could be made" but "under the opinion and mandate the court does not feel at liberty to refer it again back to the Board for further evidence or for clarification of the evidence." Accordingly, the award was confirmed. The employer appeals and insists that the evidence tending to support the award is "not sufficient in quality to support a rational conclusion," or to meet the definition of substantial probative evidence. See American Rolling Mill Company v. Pack, 278 Ky. 175, 128 S.W.2d 187; Northeast Coal Company v. Wells, 287 Ky. 654, 154 S.W.2d 740.

The claimant testified that when injured he was "averaging $3.50 per day," and had been doing so for two months. This broad statement, however, was qualified later in his direct examination particularly concerning certain voluntary payments made by the company that when he was told his compensation would be $11 a week he had responded that he "was making $15.00 a week and I expected $12.00 compensation any way until I got able to work." The company's representative, however, had continued to insist that he was entitled to only $11 a week. Stout further testified that he had one or two statements of his earnings at home, the others having been lost, and "all I know about it is when I got done loading coal, done my day's work, I would look at the sheet and I just estimated it up." At that time, before the injury, he "could read and write a little." The sheet to which he referred was the talley sheet of the coal weigher from which his wages were calculated on a tonnage basis. Thus, when read together his broad statement that he had been earning $3.50 a day was explained to be only an estimate and that he had informally claimed he was making only $15 a week, which is $2.50 a day for 6 days. However, the records of the company prove both of his estimates to be wrong, the one too high and the other too low. Those records show that during 6 weeks next before he was injured the employee had worked 19 days and earned $53.90, an average of $2.84 a day. In determining the compensation the term "average weekly...