Happy Coal Co. v. Hartbarger

• Decision Date: 28 February 1930
• Citation: 25 S.W.2d 384,233 Ky. 273
• Parties: HAPPY COAL CO. v. HARTBARGER.
• Court: Kentucky Court of Appeals

25 S.W.2d 384

233 Ky. 273

HAPPY COAL CO. v. HARTBARGER.

Court of Appeals of Kentucky

February 28, 1930

Appeal from Circuit Court, Perry County.

Compensation proceedings by W. F. Hartbarger against the Happy Coal Company. An agreement between the employee and the employer for payment of compensation was approved by the Compensation Board, and subsequently the board overruled a motion of the plaintiff to reopen the case. A judgment of the circuit court reversed the order of the board, and from that judgment defendant appeals. Reversed, with directions.

V. C McDonald, of Louisville, for appellant.

J. K P. Turner and Napier & Helm, both of Hazard, for appellee.

THOMAS C.J.

The appellee and plaintiff below, W. F. Hartbarger, was an employee of the appellant and defendant below, Happy Coal Company, the latter being the operator of a coal mine in Perry county. On March 7, 1928, plaintiff sustained an injury from falling slate, and which arose out of and in the course of his employment. Both parties had accepted our Workmen's Compensation Statute (Ky. St. §§ 4880-4987, as amended), and they entered into an agreement whereby defendant agreed to pay plaintiff $15 per week until he recovered, not exceeding the time limit provided in the statute, and that agreement was filed with and approved by the Compensation Board. After paying thereunder a total sum of $135, defendant ceased making payments, and, in the last receipt executed to it by plaintiff, that fact was expressed in this language: "This receipt means a final settlement. Do not sign it unless you intend to end payments of Compensation and close the case." The date thereof was July 2, 1928, and on September 24, 1928 plaintiff moved the Compensation Board to reopen the case (the above receipt having been filed with it in full settlement of the agreed award), on the ground that he had not received full compensation for his injury, and that he signed the final receipt under a mistake, that it was procured from him by fraud, and that he was totally disabled for a period after the final payment, and would be partially disabled for an unknown period thereafter. Defendant resisted that motion by controverting the grounds therefor, and a hearing was had before the board, each party introducing testimony, and it overruled the motion and declined to reopen the case. Plaintiff then petitioned the Perry circuit court for a review of that order which was heard upon the evidence introduced and considered by the board, followed by a judgment reversing the order of the board and directing it to open the case and adjudge the rights of the parties according to the facts, and from that judgmnt defendant prosecutes this appeal.

The testimony introduced by plaintiff before the board tended to show that he was still disabled, at least to some extent after the ceasing of payments under the original agreed award; but that introduced by defendant preponderated to the effect that plaintiff had recovered from his injuries, and was not disabled therefrom, at the time he applied for the opening of the case or at any time after the ceasing of payments. In the recent case of Trout v. Fordson Coal Co., 225 Ky. 372, 9 S.W.2d 109, the identical question here presented was before us, and we held that the finding of fact by the board on motions to reopen awards, theretofore made or approved by it, was governed by the statutory rule contained in section 4935 in the 1930 edition of Carroll's Kentucky Statutes, which is section 52 of the Compensation Act, and which is, that such finding will not be disturbed by the courts if it is supported by any competent evidence. See Kingston-Pocahontas Coal Co. v Maynard, 209 Ky. 431, 273 S.W. 34; Furnace Coal Mining Co. v. Carroll, 212 Ky. 1, 278 S.W. 171; Darby Harlan Coal Co. v. Fee, 214 Ky. 470, 283 S.W. 438; Wallins Creek Collieries Co. v. Cole, 218 Ky. 116, 290 S.W....