168 S.W.2d 332 | Ky. Ct. App. | 1943
Reversing.
Harrison Stout suffered industrial blindness as the result of lightning striking a tree above the mine and the electricity passing through a crevice in the earth down 112 feet to where he was working. We held the injury compensable and directed a judgment ordering the Workmen's Compensation Board "to render an award in accordance with the proof in the case, and for other proceedings not inconsistent with this opinion." Stout v. Elkhorn Coal Company,
The claimant testified that when injured he was "averaging $3.50 per day," and had been doing so for two months. This broad statement, however, was qualified later in his direct examination particularly concerning certain voluntary payments made by the company that when he was told his compensation would be $11 a week he had responded that he was making $15.00 a week and I expected $12.00 compensation any way until I got able to work." The company's representative, however, had continued to insist that he was entitled to only $11 a week. Stout further testified that he had one or two statements of his earnings at home, the others having been lost, and "all I know about is when I got done loading coal, done my day's work, I would look at the sheet and I just estimated it up." At that time, before the injury, he "could read and write a little." The sheet to which he referred was the talley sheet of the coal weigher from which his wages were calculated on a tonnage basis. Thus, when read together, his broad statement that he had been earning $3.50 a day was explained to be only an estimate and that he had informally claimed he was making only $15 a week, which is $2.50 a day for 6 days. However, the records of the company prove both of his estimates to be wrong, the one too high and the other too low. Those records show that during *54
6 weeks next before he was injured the employee had worked 19 days and earned $53.90, an average of $2.84 a day. In determining the compensation the term "average weekly wage" used in the Statute, KRS
The appellee submits that the appeal should be dismissed or affirmed as there was no motion and grounds for a new trial filed in the case. His argument is based upon this provision in the Compensation Act, KRS
The judgment is reversed and remanded for consistent proceedings.