194 Ky. 714 | Ky. Ct. App. | 1922
Reversing.
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 with the judgment of the court. Thomas Brown, the husband of the appellee, Mrs. Willie Brown, was an employe of the Pope Mining Company and received wages in the sum of $24.50 per week. While engaged in his duties as an employe, 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, 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 to 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 employe had actually accepted the provisions of the compensation act, in the manner required by the statute, was upon the one seeldng compensation, when in fact and in truth, under the circumstances presented in evidence, the presumption arose, that the employe 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 $4,000.00, payable at the rate of $12.00 per week, beginning at the death of the employe and remanded the cause to the board with directions to make an award in conformity to the judgment. Prom that judgment the employer has appealed.
The record shows and it is admitted, that the relationship of the employer and employe existed, between the
¡Section 4957, Kentucky Statutes, 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 employe 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 employe’s. .signature. In case an employe be unable to write, his mark shall be witnessed by a third person, who shall’at the time read the notice to .the employe; any number of employes 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 nr temporarily suspended the original acceptance of the employe .shall continue effective in subsequent employment under the same employer.
“Identification of such signature or mark of the employe 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, Kentucky Statutes, 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 employe. In each
In the instant case, the, notices of the election of the employee's of appellant to accept the provisions of the act were contained in a book, with flexible backs, about eight inc-hes in length and four and one-half inches in width. It contained-ten leaves or twenty pages. At the- top of each page, the requisite notice was printed and underneath the notice were twenty-five lines for the signatures of employes. On the second page were twenty-four signatures, on the fourth page were twenty-three, and on the sixth page were twenty-three, and on the eighth page were twelve. On the pages opposite the signatures, were the dates, when signed. ]On the remaining pages, there were no signatures. The tenth or last leaf is torn from the book. The signature of the defendant nowhere appears on this register. It is agreed that it is the register kept by the employer for the signatures of the employes to notices contained therein accepting the provisions of' the act, during the time, that decedent was in the employment. The signatures of employes to the notices commence at the top of the second page and a signature is upon nearly every line, until upon the eighth page, the signatures cease. It was agreed, that Raymond Babb,