Pope Mining Co. v. Brown

• Decision Date: 09 May 1922
• Citation: 240 S.W. 755,194 Ky. 714
• Parties: POPE MINING CO. v. BROWN.
• Court: Kentucky Court of Appeals

240 S.W. 755

194 Ky. 714

POPE MINING CO. v. BROWN.

Court of Appeals of Kentucky.

May 9, 1922

Appeal from Circuit Court, Crittenden County.

Proceedings by Mrs. Willie Brown to recover compensation under the Workmen's Compensation Act for the death of Thomas Brown employee. From a judgment setting aside an order of the Workmen's Compensation Board, denying compensation and remanding the cause to the board with directions to make an award in a certain sum, the Pope Mining Company, employer appeals. Reversed and remanded, with directions.

O'Neal & O'Neal, of Louisville, for appellant.

C. S Nunn, of Marion, for appellee.

HURT C.J.

This is an appeal by an employer from a judgment of the circuit court, reversing the finding of the workmen's compensation board and remanding the cause to the board, with directions to make and enter an award in conformity to the judgment of the court. Thomas Brown, the husband of the appellee, Mrs. Willie Brown, was an employee of the Pope Mining Company and received wages in the sum of $24.50 per week. While engaged in his duties as an employee, he was accidentally injured, and his death resulted from the injury, within a few days. The accident which caused his death arose out of and in the course of the employment. His widow made application for compensation for herself and three minor children as dependents, under the Workmen's Compensation Act (Ky. St.§§ 4880-4987), but the board denied the compensation, upon the ground that the evidence failed to prove that he had ever accepted the provisions of the Compensation Act in writing. In due time she presented a petition in the circuit court for a review of the action of the board, upon several grounds, but seriously urged that it was unsound upon only one, and that was that the award was not based upon nor supported by the facts. As an incident of this ground of review, it was insisted, that the board erred upon a question of law, in determining that the burden of proving that the employee had actually accepted the provisions of the Compensation Act, in the manner required by the statute, was upon the one seeking compensation, when in fact and truth, under the circumstances presented in evidence, the presumption arose that the employee had accepted in writing, and shifted the burden upon the employer to prove that the contrary was the fact.

The court decided that decedent had accepted the provisions of the Compensation Act, in the manner required by the statute, set aside the award of the board, and adjudged that the appellee was entitled to receive compensation in the sum of $4,000, payable at the rate of $12 per week, beginning at the death of the employee, and remanded the cause to the board, with directions to make an award in conformity to the judgment. From that judgment the employer has appealed.

The record shows, and it is admitted, that the relationship of the employer and employee existed between the appellant and decedent; that appellant had elected to operate under the provisions of the Workmen's Compensation Act; that the decedent, while in the course of employment, incurred a personal injury by accident, which arose out of the employment and which caused his death; and that appellee and her three children were dependents of the decedent. Thus but one requisite to entitle the appellee to the compensation sought was the subject of dispute, and that was whether the decedent had accepted the provisions of the Compensation Act. If he had not done so, such failure of course is fatal to the right of appellee to compensation. The award of the board, to the effect that decedent had never accepted the provisions of the act, is the decision, which it is urged for appellee is not based upon nor supported by the facts.

Section 4957, Ky. Stats., which is section 74 of the Workmen's Compensation Act, provides:

"Election to operate under the provisions of this act shall be effected by the employee by signing the following notice, to wit:

'I hereby agree with (name of employer) to accept the provisions of chapter 33, Acts of 1916, commonly known as the Kentucky Workmen's Compensation Act.'

The election shall be effective from and including the date of signing, which shall be inserted opposite the employee's signature. In case an employee be unable to write, his mark shall be witnessed by a third person, who shall at the time read the notice to the employee. Any number of employees may sign the same notice, provided that there be conspicuously written or printed at the top of each page thereof, on which signatures appear, a copy of the above form of notice. If the employment be intermittent or be temporarily suspended, the original acceptance of the employee shall continue effective in subsequent employment under the same employer.

Identification of such signature or mark of the employee shall constitute conclusive proof of his election to operate under the provisions of this act, in any hearing or proceeding in which such election may be material or in issue."

Section 4956, Ky. Stats., provides that, when an employer accepts the provisions of the act, he must do it in writing, and the writing must be signed by him. It thus appears, that the statute has prescribed a specific mode for the acceptance of the provisions of the law by both the employer and the employee. In each instance it requires their signatures to the notice required of that fact. It will be presumed that this mode of acceptance is required that there may be no uncertainty upon the subject, which would arise if an election was left to the uncertain recollections of witnesses and oftentimes the misunderstood...