Columbus Min. Co. v. Walker

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtDUNCAN
Citation271 S.W.2d 276
PartiesCOLUMBUS MINING CO. v. WALKER.
Decision Date21 May 1954

Page 276

271 S.W.2d 276
COLUMBUS MINING CO.
v.
WALKER.
Court of Appeals of Kentucky.
May 21, 1954.
Rehearing Denied Oct. 15, 1954.

Craft & Stanfill, Hazard, for appellant.

D. G. Boleyn, Hazard, for appellee.

DUNCAN, Judge.

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

Page 277

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...

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8 practice notes
  • Bunker v. National Gypsum Co., No. 1082S403
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1982
    ...Louisville Trust Co. v. Johns-Manville Products Corp., (Ky.1979) 580 S.W.2d 497, overruling Columbus Mining Co. v. Walker, (Ky.1954) 271 S.W.2d 276; Harig v. Johns-Manville Products Corp., (1978) 284 Md.App. 70, 394 A.2d 299, 1 A.L.R. 4th 105; cf. Urie v. Thompson, (1949) 337 U.S. 163, 69 S......
  • Reliford v. Eastern Coal Corporation, No. 13284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 10, 1958
    ...47 S.W.2d 77; Scott Tobacco Co. v. Cooper, 258 Ky. 795, 81 S.W.2d 588, including a silicosis case, Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276. The same conclusion was reached by this court in Finck v. Albers Super Markets, Inc., 6 Cir., 136 F.2d 191, 193, construing the Kentucky sta......
  • Teel v. American Steel Foundries, No. 81-397C(4).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 28, 1981
    ...statute of limitations is applicable. Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77 (1932); Columbus Mining Co. v. Walker, 271 S.W.2d 276 (Ky.1954). Defendants also argue that the object of the action is plaintiff Kenneth Teel's personal injuries, despite plaintiffs' characte......
  • Craft v. Rice
    • United States
    • Kentucky Supreme Court
    • June 14, 1984
    ...injury under the authority of Carr v. Texas Eastern Transmission Corp., Ky., 344 S.W.2d 619 (1961), and Columbus Mining v. Walker, Ky., 271 S.W.2d 276 Page 249 This Court reverses the decision of the Court of Appeals and the circuit court because the five-year statute of limitations applies......
  • Request a trial to view additional results
8 cases
  • Bunker v. National Gypsum Co., No. 1082S403
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1982
    ...Louisville Trust Co. v. Johns-Manville Products Corp., (Ky.1979) 580 S.W.2d 497, overruling Columbus Mining Co. v. Walker, (Ky.1954) 271 S.W.2d 276; Harig v. Johns-Manville Products Corp., (1978) 284 Md.App. 70, 394 A.2d 299, 1 A.L.R. 4th 105; cf. Urie v. Thompson, (1949) 337 U.S. 163, 69 S......
  • Reliford v. Eastern Coal Corporation, No. 13284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 10, 1958
    ...47 S.W.2d 77; Scott Tobacco Co. v. Cooper, 258 Ky. 795, 81 S.W.2d 588, including a silicosis case, Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276. The same conclusion was reached by this court in Finck v. Albers Super Markets, Inc., 6 Cir., 136 F.2d 191, 193, construing the Kentucky sta......
  • Teel v. American Steel Foundries, No. 81-397C(4).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 28, 1981
    ...statute of limitations is applicable. Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77 (1932); Columbus Mining Co. v. Walker, 271 S.W.2d 276 (Ky.1954). Defendants also argue that the object of the action is plaintiff Kenneth Teel's personal injuries, despite plaintiffs' characte......
  • Craft v. Rice
    • United States
    • Kentucky Supreme Court
    • June 14, 1984
    ...injury under the authority of Carr v. Texas Eastern Transmission Corp., Ky., 344 S.W.2d 619 (1961), and Columbus Mining v. Walker, Ky., 271 S.W.2d 276 Page 249 This Court reverses the decision of the Court of Appeals and the circuit court because the five-year statute of limitations applies......
  • Request a trial to view additional results

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