Book v. City of Henderson

• Decision Date: 02 October 1917
• Citation: 176 Ky. 785,197 S.W. 449
• Parties: BOOK v. CITY OF HENDERSON. [a1]
• Court: Kentucky Court of Appeals

197 S.W. 449

176 Ky. 785

BOOK v. CITY OF HENDERSON. ^[a1]

Court of Appeals of Kentucky.

October 2, 1917

Appeal from Circuit Court, Henderson County.

Action by H. H. Book against the City of Henderson. Petition dismissed, and plaintiff appeals. Reversed for further proceedings.

Woodward & Dixon, of Henderson, for appellant.

B. S Morris and Vance & Heilbronner, all of Henderson, for appellee.

CLARKE J.

The city of Henderson owns and operates its own electric light plant, and on September 28, 1916, maintained at Third and Green streets electric light wires over which it transmitted electric current for sale. The Henderson Telephone &amp Telegraph Company at the same time and place maintained telephone wires that crossed over, and about 5 feet above the city's electric light wires. Appellant, H. H. Book plaintiff below, filed this action against the city to recover damages for injuries received by him on the date above mentioned, alleging that he was, at that time, employed as a lineman by the telephone company; that by reason of the negligence of the defendant in failing properly to insulate its electric light wires he, while acting within the scope of his employment and in the exercise of ordinary care for his own safety, received an electric shock when one of the telephone wires came in contact with one of defendant's electric light wires sufficient to throw him a distance of 20 feet from the pole upon which he was working to the pavement, thereby inflicting upon him severe and permanent injuries. The city answered, traversing the negligence alleged, pleading contributory negligence, and, in a fourth paragraph, the acceptance of the provisions of the Workmen's Compensation Act and compensation thereunder by the plaintiff, in bar of his right to maintain the action. Plaintiff, by reply, traversed the affirmative allegations of the answer, other than those contained in the fourth paragraph thereof, to which paragraph he entered a demurrer and motion to strike out. The motion and demurrer were overruled, to which plaintiff excepted. The defendant then entered a motion for judgment upon the face of the papers, which was sustained, and the petition was dismissed. The plaintiff has appealed.

The telephone company was not a party to the action.

The fourth paragraph of the answer, which was not traversed and the allegations of which, for the purposes of the demurrer, are admitted as true, is as follows:

"This defendant for further answer herein says that both the plaintiff and the said Henderson Telephone & Telegraph Company, by whom plaintiff was employed and for whom he was working at the time of the accident complained of in his petition, had, prior to the time complained of therein, accepted the provisions of what is commonly known as the Workmen's Compensation Law, which was enacted by the General Assembly of the commonwealth of Kentucky at its 1916 regular session, and which was approved by the Governor of said commonwealth on the 23d day of March, 1916, and is chapter 33 of the Acts of said General Assembly for said year, and which was at the time complained of in plaintiff's petition, and is now in full force and effect; that the plaintiff, shortly after the happening of said accident and while he had still accepted the provisions of said act, gave notice of same to his employer, the said Henderson Telephone & Telegraph Company, and made claim upon said employer for compensation under the provisions of said act, and which claim has been allowed and is being regularly paid by said employer, the said Henderson Telephone & Telegraph Company, and in an amount equal to 65 per cent. of the wages plaintiff was receiving at the time of his said accident, and amounting to the sum of $9.75 per week, and will continue so to be paid to the plaintiff by said employer, the Henderson Telephone & Telegraph Company, under the provisions of said law; that the plaintiff by accepting said compensation as aforesaid, and receiving and collecting the same, is estopped from collecting anything from this defendant on account of said injuries, if any he received, and is estopped from recovering against this defendant anything on account thereof, and this defendant pleads and relies upon said acts of estoppel as a bar to any recovery against this defendant by plaintiff herein."

The decision of the question involved depends upon the proper construction of section 9 of the Workmen's Compensation Act (Acts 1916, p. 354), which reads as follows:

"Whenever an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employé may at his option either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both, and if compensation is awarded under this act the employer having paid the compensation or having become liable therefor, shall have the right to recover in his own name or that of the injured employé from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employé."

It is the claim of appellee that, by collecting compensation from the employer awarded under the act, appellant is estopped from proceeding against the city to recover damages, even though its negligence may have caused the injury. It will be seen, from the above quotation from the act, that an employé injured by the negligence of a third party, may, at his option, claim compensation from the employer under the provisions of the act, or proceed at law by civil action against the negligent third party to recover damages, or, third, proceed against both the employer for compensation and against such other third person to recover damages. The third option is, however, limited by the provision that he shall not collect from both; and...