Kington Coal Min. Co. v. Danberry

Decision Date08 March 1929
Citation14 S.W.2d 1084,228 Ky. 344
PartiesKINGTON COAL MINING CO. v. DANBERRY.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Union County.

Proceedings for compensation under the Workmen's Compensation Act by Edward Danberry, employee, opposed by the Kington Coal Mining Company, employer. From the judgment, the employer appeals. Reversed, with directions.

V. C McDonald, of Louisville, for appellant.

G. E Jones and E. R. Morton, both of Morganfield, for appellee.

TINSLEY C.

For several months prior to February 28, 1928, the appellee was employed by the appellant in its mine in Union county, Ky. On that day he filed with the Workmen's Compensation Board against appellant a claim for compensation on account of an injury arising out of and in the course of his employment. A hearing on this claim was had before one member and a referee of the board on July 10, 1928, at which testimony was introduced by both parties; upon consideration whereof the board entered an order dismissing appellee's claim on the ground there was no evidence to show that appellee had accepted, or elected, to work under the provisions of the act. Appellee prosecuted an appeal from this order of the board to the Union circuit court, where, upon the same evidence heard before the board, a judgment was rendered on September 14, 1928, setting aside the order of the board and remanding the case to it for an allowance to appellee. From that judgment this appeal is prosecuted, and, to reverse it appellant insists the court was without authority to enter it and that it is not sustained by the law or the evidence.

On the hearing before the board it developed, both in the testimony of appellee and in that for appellant, that appellee had never elected to work under the provisions of the act by signing the compensation register; nor was there any proof that appellee had indicated his election to accept the provisions of the act by signing any other notice, book, or paper. He testified that he had no recollection of ever signing the compensation register or of signing anything else to indicate his acceptance of the provisions of the act. Appellant's secretary, who keeps its books and records testified that appellee had never signed the compensation register, although he further testified that appellant had never requested him to sign it nor had appellee requested that he be permitted to sign it, and that at the time appellee began working in appellant's mine appellant had no compensation register, although it procured and had one at the time of the hearing. It was proven and conceded that appellant had accepted the provisions of the act. None of...

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