Com. Dept. of Highways v. Meyers

• Decision Date: 15 November 1957
• Citation: 307 S.W.2d 179
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ralph MEYERS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 179

307 S.W.2d 179

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ralph MEYERS, Appellee.

Court of Appeals of Kentucky.

Nov. 15, 1957.

Jo M. Ferguson, Atty. Gen., C. J. Waddill, Asst. Atty. Gen., Hafford E. Hay, Asst. Atty. Gen., for appellant.

Louis T. Peniston, New Castle, for appellee.

SIMS, Judge.

This appeal is from a judgment of $7,500 appellee Ralph Meyers recovered against the Commonwealth in an action for damages for personal injuries received as the result of the alleged negligence of the Highway Department while he was working on State Highway 146 as an employee of the Department. Two grounds are assigned for reversal: (a) The parties had accepted the terms of the Workmen's Compensation Act and this prevented Meyers from maintaining a common law action for damages; (b) a resolution passed by the General Assembly permitting Meyers to bring this action was unconstitutional as special legislation.

The record shows these facts. Meyers, a laborer employed by the Department, was seriously injured on November 10, 1952, while in his line of duty by one of the Department's trucks which backed into him when its driver negligently put the truck in reverse gear instead of low forward gear as Meyers signaled the truck to go forward. There is some proof for the Department that at the time of his employment Meyers signed an agreement in the presence of a witness whereby he accepted the terms of the Workmen's Compensation Act, hereinafter referred to as the Act; also that he had accepted certain compensation payments and had signed a power of attorney authorizing his employer to pay hospital bills in the sum of $2,233.35. However, after quite a bit of equivocation Meyers finally denied his signature on these papers and the court submitted to the jury the question of whether he had accepted the provisions of the Act.

In the shape this record is in the instruction would have been correct were it not for KRS 342.395 (which became effective June 24, 1952), the applicable part of which reads:

'In the event an employer elects to operate under this chapter, then every employee of such employer, as a part of his contract of hiring or who may be employed at the time of the acceptance of the provisions of this chapter by such employer, shall be deemed to have accepted all the provisions of this chapter and shall be bound thereby unless he shall have filed, prior to the injury * * * written notice to the contrary with the employer * * *.

'Until such notice to the contrary is so given to the employer, the measure of liability of such employer shall be determined according to the compensation provisions of this chapter.'

Certain papers and exhibits in the record abundantly show the Department was operating under the Act, and there is no evidence Meyers ever gave the notice required under KRS 342.395 that he would not accept the terms of the Act, therefore he automatically came under the Act by virtue of this statute.

Meyers argues that even though he was working under the Act at the time of his injury, it does not cover his impairment of power to earn money but only compensates him for the loss of time suffered by reason of his injury, therefore the Act does not preclude him from bringing a common law action for loss of earning capacity. He cite...