Columbus Min. Co. v. Walker
| Decision Date | 21 May 1954 |
| Citation | 271 S.W.2d 276 |
| Parties | COLUMBUS MINING CO. v. WALKER. |
| Court | United States State Supreme Court — District of Kentucky |
Craft & Stanfill, Hazard, for appellant.
D. G. Boleyn, Hazard, for appellee.
This appeal is from a judgment for $7,000 in favor of appellee for disability resulting from silicosis allegedly contracted while employed in appellant's mine. Although operating under the Workmen's Compensation Act generally, KRS 342.001 et seq., the parties had not accepted the provisions of the silicosis section of the Act, and the provisions of the Workmen's Compensation Act relating to silicosis are not applicable. The case turns upon the plea of the statute of limitations, and we shall not discuss other questions.
Appellee was employed in appellant's mine for a period of approximately twelve years, ending on November 17, 1949. This action was instituted on January 29, 1951. In an effort to avoid the application of the one-year statute of limitations, KRS 413.140, appellee's action is predicated on a breach of appellant's oral contract of employment, and the petition alleges that appellant breached its contract by failing to furnish a reasonably safe place in which to work, and that by reason of such failure appellee contracted the disease of silicosis through the inhalation of silica dust which was present in the mine. The first question we have to determine is whether or not the one or five-year statute of limitations is applicable.
Appellee relies upon Menefee v. Alexander, 107 Ky. 279, 53 S.W. 653; Wood v. Downing's Adm'r, 110 Ky. 656, 62 S.W. 487, and Western Union Tel. Co. v. Witt, 110 S.W. 889, 33 Ky.Law Rep. 685, in support of his position that where the tort is waived and the action is based upon an implied contract the limitation period relating to actions ex contractu should prevail. The cited cases support appellee's position, but it is significant that these opinions were all rendered prior to the 1916 Amendment to the one-year statute.
Appellee insists that the 1916 Amendment applies only to actions against a physician or surgeon for negligence or malpractice in the performance of professional services and does not have the effect of changing the rule in other actions which might conceivably be founded on either contract or tort.
One of the first cases decided by this Court after the 1916 Amendment was Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77, which was an action sounding in contract against the hospital and those responsible for its operation for failing to exercise the proper care in restraining Howard from jumping from a third-story window while a patient in the hospital. Although the action was not one for negligence or malpractice of a physician or surgeon in the performance of professional services, it was held that in view of the 1916 Amendment the rule in the Menefee case was no longer applicable. Since that time, this Court has many times recognized that the period of limitation is not determined solely by the form which an action assumes. It is true that most of these cases involved malpractice actions against physicians or surgeons, but it now seems reasonably clear both in this jurisdiction and most of the other states that the object rather than the form of the action shall control in determining the limitation period. The rule is stated in 34 Am.Jur., Limitation of Actions, Section 103, Page 84, as follows:
'* * * it is generally held that where a statute limits the time in which an action for 'injuries to the person' may be brought, the statute is applicable to all actions the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, in preference to a general statute limiting the time for bringing actions ex contractu.'
Most of the cases which at first glance might be thought to support the view that such statutes do not apply to actions ex contractu are distinguishable because they involve a construction of limitation statutes in which the context clearly indicates that they are applicable only in tort actions.
As indicating the extent to which this Court has gone in looking to the object rather than the form of the action, we held in Cook v. John N. Norton Memorial Infirmary, 180 Ky. 331, 202 S.W. 874, L.R.A.19...
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