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Katterjohn v. Adams

June 20, 1952

KATTERJOHN ET AL.
v.
ADAMS



Moremen

MOREMEN, Justice. Appellants, George W. Katterjohn, employer, and his insurance carrier, the U. S. Fidelity and Guaranty Co., seek reversal of a judgment by which they were ordered to pay appellee, Leston Adams, employee, benefits under the Workmen's Compensation Act.

On April 20, 1949, appellee was injured, and on the following day an agreement on Workmen's Compensation Board's Form No. 9 was executed by the parties to this appeal. All blanks of the form were not filled in, and it read:

'Agreement Between Employer and Employee as to Payment of Compensation.

'We, Leston Adams, residing at Route #2, Kirksey, Ky. and Geo. W. Katterjohn & Son have reached an agreement in regard to compensation for the injury sustained by said employee, and submit the following statement of facts relative thereto: --

'1. Said injury was sustained on April 20, 1949, at ]M

'2. Nature of Injury Fellow Workers dropped panel on back, causing muscular injury.

'3. Period of disability: From 4-21-49 to ___ 19__ at ]M

'4. Employee's average weekly wage at time of injury: $46.00

'5. Permanent, total or partial disability _____ (968)

'6. Terms of agreement as to compensation: $21.00 per week for No. Weeks _____ beginning 4-21.49_____

'7. __________ (If disability has not ended at time this agreement is filed give estimate as to probable date employee will be able to resume work).'

On this same day it was examined and approved by the Workmen's Compensation Board. The agreed sum of $21 per week was paid to Adams until July 21, 1949, at which time the insurance carrier stopped payment. On February 1, 1950, on Board's Form No. 11 Adams filed application for an adjustment under his claim and two weeks later filed a verified motion to reopen the case on grounds of fraud and mistake. Appellee did not pursue the purposes of this motion but instead, on November 8, 1950, under authority of KRS 342.305, filed in the circuit court a certified copy of the memorandum of the agreement on Form No. 9 and served notice on appellants that a motion for judgment on this award would be made. Appellants filed motion to strike, a demurrer, and a response. Appellee demurred to the response.

Upon submission of the whole case the court overruled appellants' motion and demurrer but sustained the demurrer to the response, whereupon appellants declined to plead further and the court entered judgment by which appellee recovered compensation benefits at the rate of $21 per week from July 21, 1949, to date. It was further adjudged that he continue to recover compensation at the same rate until the award theretofore entered by Workmen's Compensation Board should be modified or set aside, in no event to exceed the maximum provided by law.

Appellants contend that: (1) the agreement was void because of uncertainty and, therefore, did not constitute an award; (2) the agreement was ambiguous -- was not treated as an award by the parties -- and under the rule of contemporaneous construction should not be treated as an award by the court; (3) in order to entitle an employee to judgment on an award in the circuit court he must ...


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