2 S.W.2d 365 | Ky. Ct. App. | 1928
Reversing.
The Allburn Coal Corporation and its insurance carrier, Maryland Casualty Company, sought to reopen a case pending before the Workmen's Compensation Board. The board declined to reopen the case. From *741
that action they sought a review by the circuit court, but obtained no relief, and they have appealed to this court. On January 18, 1925, the mutilated bodies of two men were found in the mine of the Allburn Coal Corporation. One of the bodies was identified as the body of Henry Wilson; the other as the body of W.H. Turner. On February 6, 1925, the coal company and its insurance carrier, with approval of the board, entered into an agreement with Rhoda Catherine Wilson, the widow of Henry Wilson, to pay her compensation at the rate of $12 per week for 335 weeks. It has since developed that W.H. Turner was not killed, and he and others have been indicted for the murder of Wilson and the unknown man whose body, then identified as Turner's, was found with Wilson's body. Turner has been tried, convicted, and is now in the penitentiary serving a life sentence for his connection with this crime. One Joe Jack, Jr., an alleged confederate of Turner, was also convicted, and a very good statement of the facts in the case before us will be found in the case of Jack v. Com.,
On October 16, 1926, the coal company and its insurance carrier filed with the Workmen's Compensation Board a very elaborate motion to reopen this case, the essential part of which is an allegation that Henry Wilson was not accidently killed in this mine, but was willfully murdered, and the award was agreed to through fraud or mistake. The board should have given them the relief sought, as they were entitled to it under section 4902, Ky. Stats. In determining whether or not they were entitled to this relief, the statements contained in their motion therefor must be taken as true, and they directly allege that Wilson was murdered, and, if he was murdered, then his death did not result from an accident arising out of and in the course of his employment. Cases from this state that will throw light upon this Subject are Hollenbach Co. v. Hollenbach,
We of course are not to be understood as expressing any opinion upon the merits of this case further than to say that these parties had a right to have this case reopened, and to offer such evidence as they could that this man was murdered, and that, if that was shown to, be the case, then this man was not killed by an accident arising out of and in the course of his employment, and they would then be entitled to have the agreement for compensation set aside, and the claim of the widow, Rhoda Catherine Wilson, for compensation, dismissed.
The judgment of the Pike circuit court denying them that relief is reversed, and the Workmen's Compensation Board is directed to reopen the case.
