205 Ky. 752 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
This proceeding chiefly involves the procedural provisions of onr Workmen’s Compensation Act, being sections 4880, 4987 inclusive of the 1922 edition of Carroll’s Kentucky Statutes. Such statutes have for their pur
On May 8, 1919, Lewis P. Johnson was employed by the Hardy-Burlingham Mining Company as a workman in its coal mine and both the employer and the employee were operating under our Workmen’s Compensation Act. On that day a piece of slate fell upon Johnson while he was at work in the mine, inflicting injuries upon him from which he soon thereafter died, and the accident as well as the consequent injury was such as is compensable under the act. In 1912 Johnson had married the appellant, Bertha Johnson, and about two years thereafter a child, the appellant Lewis Prank Johnson, was
After more than a year had elapsed from the time of his death, Bertha Johnson made formal application to the Workmen’s Compensation Board for an allowance to her and her infant child as the sole dependents of the deceased, and Cora Johnson was made a party to that application. Upon a hearing before the board, at which evidence was introduced, it discontinued the allowance to Cora Johnson and dismissed the application of Bertha Johnson and her infant son upon the ground that the application was barred because it was not made within one year after the death of the employee, as is required by section 4914 of the statute; and it disallowed the claim of the infant child of Bertha Johnson upon the additional
Numerous grounds for a reversal of the judgment are vigorously urged and ably argued by counsel for appellants and are in the same manner combatted by counsel for appellees, but because of the conclusions we have reached, we have concluded to discuss and determine but one of them and which, as we construe the statute, rendered both the award and the judgment of the circuit court erroneous and authorizes their reversal and a direction to the board to substitute the appellant, Bertha Johnson, for Cora Johnson as the beneficiary in the award originally made by the board in adopting the agreement made by Cora Johnson with the employer and its insurance company.
Section 4896 of the statutes, which is section 15 of the act when passed by the legislature, says in part: “Payment of death benefits, in good faith, to a supposed dependent or to a dependent subsequent in right to another or other dependents shali protect and discharge the employer and insurer unless and until the lawful dependent or dependents prior in right shall have given the employer or insurer written notice of bis or their claim;” while section 4902 of the statutes, which is section 21 of the act, says: “Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this act, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Eeview under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder.” (Our
Cora Johnson not having been legally married to the deceased was not under the provisions of the act a lawful dependent; especially was that true when there was surviving a lawful wife, and the board had the right to end or suspend the award as to her under the provisions of the last two sections referred to and to “change or revoke its previous order directing the payment of the award” to her. It is also clear and it is our conclusion that it had the right under section 4902 to also change
Waiving all controversy about the writing of letters by, for or on behalf of Bertha Johnson, we are thoroughly convinced that her formal and written application to the board, with due notice to the employer and its insurer as well as to the compensation board, was- a substantial if not a technically literal compliance with the requirement in section 4896 as to the giving of notice, and that being true it necessarily follows that on that hearing it was the duty of the board to substitute Cora Johnson, as the beneficiary in the original award, with that of Bertha Johnson, the true and correct one, and to direct that payments made after giving of the indicated notice should •be made to her until the award 0was satisfied. Our interpretation of the two sections referred to would appear to be sustainable even in the absence of the liberal rule first referred to herein, but were it not so the observance of that rule fully justifies it. This conclusion, as hereinbefore intimated, renders it unnecessary to discuss other errors urged against the judgment, and they will not be further referred to.
Nor do we deem it necessary to determine whether the infant appellant who is under sixteen years of age is presumptively a dependent under the provisions of subdivision (c) of section 4896 of the statutes because of the proven and admitted facts as to him not residing with or supported by the deceased, since we conclude that the same purposes are accomplished as to the infant by directing the award to be made to its mother, who as such and as its next friend will no doubt use its proportionate part in its support and maintenance. Its right, however, to share in the award and to enforce that right as between the mother and itself if she should deny it are not determined or concluded by this opinion.
But, it is insisted that as to the appellants here, this court should direct a modification of the award as originally agreed to by the board by disallowing the reduction of 15 per cent, upon the ground hereinbefore pointed out, because it is insisted the reduction is unsupported by any evidence. However, we do not so read the record, since
Wherefore, the judgment is reversed with directions to the board to substitute the name of Bertha Johnson in the place of Cora Johnson as beneficiary under the original award, and that she receive all payments with interest thereon due under the award from the date of the suspension as to Cora Johnson, and for further proceedings consistent with this opinion.