Wagner Coal & Coke Co. v. Gray, Guardian

• Citation: 208 Ky. 152
• Court: United States State Supreme Court (Kentucky)
• Decision Date: 24 March 1925
• Parties: Wagner Coal & Coke Company and London Guarantee & Accident Company v. Lulu Gray, Guardian for Mary Spurlock, et al.

208 Ky. 152

Wagner Coal & Coke Company and London Guarantee & Accident Company v. Lulu Gray, Guardian for Mary Spurlock, et al.

Court of Appeals of Kentucky.

Decided March 24, 1925.

Master and Servant — Newly Discovered Evidence Not Grounds for Reopening Compensation Case. — Where compensation had been awarded, newly discovered evidence that employer's name had been put at head of compensation register without authority and that therefore deceased had not signed register, and also that deceased was not killed in course of his employment, held not proper grounds for reopening case within Ky. Stats., section 4902, since parol evidence offered should, by ordinary prudence,

have been produced at trial; facts being presumably in knowledge of employer.

Appeal from Bell Circuit Court.

SAMPSON & SAMPSON and C.T. DOTSON for appellants.

W.J. STONE and M.G. COLSON for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

The Chappell Coal Company operated for a short time a coal mine and then sold it to the Phillips Coal Company, who later sold it to the Wagner Coal Company. After the last sale Dan Spurlock was killed in the mine on October 12, 1920. Claim for compensation was filed by appellees before the Workmen's Compensation Board on January 25, 1921. Proof was taken and the case was heard before the board on April 11, 1921; an award was made in favor of appellees on January 21, 1922. On that hearing the issue made, and on which the proof was taken, was whether Dan Spurlock had signed the compensation register of the Wagner Coal Company. The register was produced showing the name of the Wagner Coal Company at the head of the page and the name of Dan Spurlock, among others, on the page, and it was shown by testimony that Dan Spurlock had regularly signed the register. In November, 1922, the Wagner Coal Company filed a motion before the board to reopen the case and in support of the motion filed the affidavits of James Pruitt, E.M. Wagner and C.T. Dodson. The board overruled the motion. In December, 1922, the Wagner Coal Company filed this action in the Bell circuit court to set aside the order of the board refusing to open the case. At the February term, 1923, the court dismissed the petition. On September 17, 1923, the appellants prosecuted this appeal to this court from the judgment of the Bell circuit court. Section 4902, Kentucky Statutes, provides:

"Upon its own motion or upon the application of any party interested and a showing...