In other words, it provides that if an employee unable to write does sign by mark, his mark shall be witnessed. That being true, it seems to us that the method of signing prescribed by the statute is not exclusive, and therefore does not necessarily prohibit any other method legally sufficient to accomplish the same result. It has long been the settled rule in this and other jurisdictions that where a person's name is signed for him at his direction and in his presence by another, the signature becomes his own, and is sufficient to give the same validity to an instrument as though written by the person himself (Irvin v. Thompson, 4 Bibb, 295; Middleton's Adm'rs v. Hensley, 52 S. W. 974, 21 Ky. Law Rep. 703; Middlesboro Waterworks Co. v. Neal, 105 Ky. 586, 49 S. W. 428, 20 Ky. Law Rep. 1403; Phoenix National Bank v. Taylor, 113 Ky. 61, 67 S. W. 27, 23 Ky. Law Rep. 2307; Clark v. Latham, 25 Ark. 16; Handyside v. Cameron, 21 Ill. 588, 74 Am. Dec. 119; Croy v. Busenbark, 72 Ind. 48; Stevens v. Getchell, 11 Me. 443; Just v. Wise Tp., 42 Mich. 573, 4 N. W. 298; Hotchkiss v. Cutting, 14 Minn. 537 [Gil. 408]), and we perceive no reason why this method of signing may not be adopted by an employee who desires to accept the provisions of the Workmen's Compensation Act. [3] In this case the employer kept a register for the employees to sign. Elswick's name appears in the register immediately preceded and followed by other names. His name was written and witnessed by the foreman charged with the duty of keeping the register and obtaining the signatures of employees. Though not recalling the circumstances under which Elswick signed, the foreman says that it was not his custom to write any name unless authorized by the employee. In our opinion this evidence was sufficient to show that the foreman signed and witnessed the name of Elswick in his presence and at his direction, and that Elswick had thereby accepted the provisions of the act. It follows that the plea to the jurisdiction of the court should have been sustained. Judgment reversed, and cause remanded for proceedings consistent with this opinion. POPE MINING CO. v. BROWN. (Court of Appeals of Kentucky. May 9, 1922.) 240 Southwestern Reporter, 755. 1. MASTER AND SERVANT-SIGNING OF ELECTION UNDER COMPENSATION ACT PROVABLE BY OTHER EVIDENCE THAN SIGNATURE. While Workmen's Compensation Act (Ky. St. § 4957), provides that identification of an employee's signature to the notice of election shall constitute conclusive proof of his election under the act, the signing of the election may be shown by other competent evidence, if his signature cannot be exhibited. (For other cases, see Master and Servant, Dec. Dig. § 404.) 3. MASTER AND SERVANT - BURDEN OF PROVING EMPLOYEE'S ELECTION UNDER COMPENSATION ACT IS ON CLAIMANT. While an employee's acceptance of the Workmen's Compensation Act, by signing a notice as written evidence of election, required of both employer and employee by Ky. St. §§ 4956, 4957, to be preserved by the employer as required by section 4958, may be established by secondary proof. if the notice cannot be produced or is mutilated, the burden of producing substantial proof of signing is on the claimant for compensation, as in the case of a party taking the affirmative of any other issue, as provided in Civ. Code Prac. §§ 525, 526. (For other cases, see Master and Servant, Dec. Dig. § 403.) 4. MASTER AND SERVANT MUTILATED COMPENSATION REGISTER HELD NOT AFFIRMATIVE EVIDENCE OF SIGNING BY EMPLOYEE. The fact that the register of acceptance required by Workmen's Compensation Act (Ky. St. §§ 4956-4958) was mutilated by the absence of the last leaf in a book of 20 pages, in which signatures of employees ended on the eighth page, was not affirmative evidence that a deceased employee, whose signature did not appear, had signed the register. (For other cases, see Master and Servant, Dec. Dig. § 405[3].) 5. MASTER AND SERVANT COMPENSATION BOARD'S DECISION CONCLUSIVE. In proceedings under Workmen's Compensation Act involving the issue of fact as to whether deceased employee had accepted the act in writing, as provided in Ky. St. § 4957, the compensation board's decision against the claimant was conclusive in the absence of any erroneous view of the law. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Appeal from Circuit Court, Crittenden County. Proceedings by Mrs. Willie Brown to recover compensation under the Workmen's Compensation Act for the death of Thomas Brown, employee. From a judgment setting aside an order of the Workmen's Compensation Board, denying compensation and remanding the cause to the board with directions to make an award in a certain sum, the Pope Mining Company, employer, appeals. Reversed and remanded, with directions. O'Neal & O'Neal, of Louisville, for appellant. HURT, C. J. 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 to the judgment of the court. Thomas Brown, the husband of the appellee, Mrs. Willie Brown, was an employee of the Pope Mining Company and received wages in the sum of $24.50 per week. While engaged in his duties as an employee, 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 (Ky. St. §§ 4880-4987), 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 in 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 employee had actually accepted the provisions of the Compensation Act, in the manner required by the statute, was upon the one seeking compensation, when in fact and truth, under the circumstances presented in evidence, the presumption arose that the employee 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, payable at the rate of $12 per week, beginning at the death of the employee, and remanded the cause to the board, with directions to make an award in conformity to the judgment. From that judgment the employer has appealed. The record shows, and it is admitted, that the relationship of the employer and employee existed between the appellant and decedent; that appellant had elected to operate under the provisions of the Workmen's Compensation Act; that the decedent, while in the course of employment, incurred a personal injury by accident, which arose out of the employment and which caused his death; and that appellee and her three children were dependents of the decedent. Thus but one requisite to entitle the appellee to the compensation sought was the subject of dispute, and that was whether the decedent had accepted the provisions of the Compensation Act. If he had not done so, such failure of course is fatal to the right of appellee to compensation. The award of the board, to the effect that decedent had never accepted the provisions of the act, is the decision, which it is urged for appellee is not based upon nor supported by the facts. Section 4957, Ky. Stats., 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 employee 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 employee's 'signature. In case an employee he unable to write, his mark shall be witnessed by a third person, who shall at the time read the notice to the employee. Any number of employees 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 or be temporarily suspended, the original acceptance of the employee shall continue effective in subsequent employment under the same employer. "Identification of such signature or mark of the employee 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." [1] Section 4956, Ky. Stats., provides that, when an employer accepts the provisions of the act, he must do it in writing, and the writing mustbe signed by him. It thus appears, that the statute has prescribed a specific mode for the acceptanc、 of the provisions of the law by both the employer and the employee. In each instance it requires their signature to the notice required of that fact. It will be presumed that this mode of acceptance is required that there may be no uncertainty upon the subject, which would arise if an election was left to the uncertain recollections of witnesses and oftentimes the misunderstood declarations of the parties. Section 4958, Ky. Stats., requires the written evidence of the election of the employees to be preserved, under a penalty for their willful obliteration. While section 4957, supra, provides that the "identification of such signature or mark of the employee shall constitute conclusive proof of his election to operate under the provisions of the act," it is not held that proof of the election of an employee may not be shown by any other competent evidence than exhibition of the signature, where same cannot be shown for any reason, but it seems that, before an employee can be considered to have elected to accept the provisions of the act, it must be proven substantially that he made the election in writing by signing a declaration to that effect. McCune v. Pell & Bro., 192 Ky. 22, 232 S. W. 43; Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648, Ann. Cas. 1918B, 604; Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W., 152, 13 A. L. R. 524; Dosker, Manual on Workmen's Compensation, 83. In the instant case the notices of the election of the employees of appellant to accept the provisions of the act were contained in a book, with flexible backs, about 8 inches in length and 41⁄2 inches in width. It contained 10 leaves or 20 pages. At the top of each page the requisite notice was printed and underneath the notice were 25 lines for the signatures of employees. On the second page were 24 signatures, on the fourth page were 23, and the sixth page were 23, and on the eighth page were 12. On the pages opposite the signatures were the dates when signed. On the remaining pages there were no signatures. The tenth or last page is torn from the book. The signature of the decedent nowhere appears on this register. It is agreed that it is the register kept by the employer for the signatures of the employees to notices contained therein, accepting the provisions of the act, during the time that decedent was in the employment. The signatures of employees to the notices commences at the top of the second page, and a signature is upon nearly eevry line, until upon the eighth page the signatures cease. It was agreed that Raymond Babb, who was the employer's superintendent, and Jas. Garnett, one of the employees, would testify that on May 1, 1918, decedent and Garnett were working near the office of the employer, when Babb called to them to come and sign the notices of acceptances in the register, and Garnett went immediately and did so, and his signature appears accompanied by that date. The decedent answered that he would come and sign as soon as he completed boring a hole in a log. Babb and Carnett went into the engine room, and Babb called to decedent that he would leave the register upon the table, or else decedent said to Babb to leave it there and he would go there and sign it. The decedent was mortally injured on August 2. 1919. Thirty-two signatures appear on the register after May 1, 1918. The book remained in the office of the employer or about the place of business, and was never placed under lock and, although 32 employees signed it thereafter, no one ever saw the name of the decedent upon it anywhere. No one saw him sign, nor going to the place where the register was, nor in such proximity to it, or under circumstances from which it could be inferred that he was signing or had signed it. There was evidence, without any objection to its competency, that decedent often urged other employees to sign the notice in the register, and said that he always "signed up." The register was at all times in the control of the employer, through Babb, its superintendent, and he never saw the name of decedent upon it. The statute makes it the duty of the employer to preserve the register so long as the employees, who sign it, are in the employment of the employer. It was admitted that a witness would testify that he had seen the register in a little box or cabinet in the engine room, and that he had seen boys reach into the box or cabinet and tear out pieces from papers or magazines in the cabinet with which to light cigarettes, but there was no evidence that he had ever seen the register thus treated. No one pretended to know or to explain how the last leaf on the back side of the register came to be missing, and Babb deposed that he never observed it until after the death of decedent. [2, 3] The appellee would depose that, after decedent was injured. he said to her not to sign any papers nor to make any compromises, as the law fixed the sum she would receive, but the competency of this declaration was assailed, and it was clearly incompetent as evidence. To entitle the dependents of one to compensation under the Workmen's Compensation Law and to change the relations which such a one bears to his employer under the common law, if the relationship created by the Compensation Act is denied, the party who takes the affirmative of the issue takes the burden of proving it. The principle must be the same as in case of one, who takes the affirmative of, any other issue, unless it is otherwise pro vided by statute. 1 Greenleaf, § 74; Civil Code, §§ 525 and 526. While the keeping of the notice of acceptance is the duty of the employer, and the statute has not provided any writing held by the employee to prove the fact that he has accepted in writing the provisions of the act, and, while the employees would not be deprived of secondary proof of the signing by him, if the notice itself could not be produced, or if produced was mutilated, yet the employee would have to carry the burden of making proof, at least of some character, that he had accepted the act as provided in it. [4, 5] The fact must be established and the presumption of fact, which would arise from a mutilated register, would assist in the determination of the fact of acceptance in writing, the fact that the register was mutilated by the absence of a leaf would not be evidence to prove that decedent had ever signed an acceptance in it. The mutilation would probably destroy the value of the register as evidence to disprove any affirmative evidence that he had signed the notice in it, but it could not possibly amount to affirmative evidence that he had signed the notice. The improbability of the decedent having signed his name upon the last leaf of the register and not where the other employees had theretofore and thereafter placed their signatures, and the fact that the register bore the date of the signatures of so many others after the time, it must be presumed from the evidence that decedent signed, and no one ever saw the name of decedent in the register, is evidence which goes to determine the fact of his acceptance, also. Whether or not the decedent declared his acceptance of the provisions of the act in writing, by signing his name to the notice printed in the register seems to have-been an issue of fact, and having been decided by the board without the application of any erroneous view of the law, must be considered as conclusive of the issue. In the absence of any evidence that decedent ever signed the notice, and in the absence of the proof of any fact from which it can be inferred that he did so, it cannot be held upon mere speculation that the award was not supported by the evidence. The judgment appealed from must therefore be reversed, and cause remanded, with directions to dismiss the petition. CRAFT v. GULF LUMBER CO. (No. 24549.) (Supreme Court of Louisiana. April 3, 1922. Rehearing Denied April 24, 1922.) 91 Southern Reporter, 736. (Syllabus by Editorial Staff.) 1. MASTER AND SERVANT SETTLEMENT OF COMPENSATION CLAIM WITHOUT COURT'S APPROVAL NOT BINDING. The settlement by an injured employee; without approval by the court, for $15, of his claim for compensation for which he was subsequently awarded $2,970, was in violation of Employers' Liability Act, § 8, subsec. 8, and not binding on the employee. (For other cases, see Master and Servant, Dec. Dig. § 382.) 3. MASTER AND SERVANT FINDINGS AS TO EXTENT OF COMPENSABLE INJURY SUSTAINED. In a suit under the Employers' Liability Act, evidence as to whether a hernia was caused by the injury held to support the trial court's findings as to the extent and seriousness of the injury. (For other cases, see Master and Servant, Dec. Dig. § 405[6].) 15 Vol. X-Comp. |