Conder v. Hayden

• Decision Date: 20 May 1960
• Citation: 335 S.W.2d 909
• Court: United States State Supreme Court — District of Kentucky
• Parties: Norris CONDER, Appellant, v. Elisha HAYDEN et al., etc., Appellees.

Page 909

335 S.W.2d 909

Norris CONDER, Appellant, v. Elisha HAYDEN et al., etc., Appellees.

Court of Appeals of Kentucky.

May 20, 1960.

Eli H. Brown, III, Louisville, for appellant.

J. Smith Barlow, Jr., Bardstown, Gavin H. Cochran, Louisville, for appellees.

BIRD, Judge.

Appellees, H. F. Mathis, George Geoghegan and Fabian Mathis, composed a partnership engaged in the construction business. Appellee, Elisha Hayden, was employed as a foreman of the partnership and was engaged in the performance of his duties at the time involved in this action.

Appellant, Norris Conder, was another employee of the partnership.

Appellant, Norris Conder, was injured while riding in a small truck owned by the partnership and driven by the foreman, Elisha Hayden. The Truck collided with another vehicle resulting in Conder's injury. He instituted this action in the Nelson Circuit Court for damages against the partners, the foreman who drove the truck, and others not involved in this appeal.

At all times involved in this action the partners, the foreman and the employee, Norris Conder, had accepted and were working under the provisions of the Kentucky Workmen's Compensation Act, KRS 342.001 et seq.

The partners and the foreman-driver moved for summary judgment under CR 56 upon the express ground that Conder's remedy was exclusively under the Workmen's Compensation Act and that the Nelson Circuit Court was therefore without jurisdiction of the subject matter.

Upon consideration of the pleadings, depositions and affidavits, the trial court held that there was no genuine issue as to any material fact, sustained the motion for summary judgment and entered a judgment dismissing the action as to the partnership and Hayden. From this judgment Conder appeals.

The record, we believe, unquestionably discloses that the trial court could not properly grant a summary judgment upon the ground stated in the motion.

To have any remedy under the Workmen's Compensation Act Conder's injury must have been work connected. In this case it is not contended that Conder was performing any duty for his employer. He was simply being transported to his home in the employer's truck. The employer does contend, however, that he had an obligation to furnish Conder with transportation which is sufficient to bring the injury within the work-connected class. We have taken this position in cases where such an obligation, express or implied, is found to exist. Gray v. W. T. Congleton Co., 263 Ky. 716, 93 S.W.2d 829. The existence of the duty to furnish transportation is indeed a material fact that must be proved in this case and, if there is a genuine issue on this fact, a summary judgment should not be granted on the ground of 'exclusive remedy' as set forth in the motion. Without detailing the content of Conder's affidavit it is our conclusion that it creates a very genuine issue as to the existence of any duty to transport. Summary judgment could not therefore be granted on the ground contained in the motion.

Nevertheless, appellees insist that the motion for summary judgment was properly sustained upon a ground not specifically asserted in the motion or in the trial court's conclusions. They claim that Conder accepted benefits under the Workmen's Compensation Act and, having done so, is estopped to deny that his injuries were compensable under the act.

In the...