D.E. Hewitt Lumber Co. v. Brumfield

• Decision Date: 08 December 1922
• Citation: 245 S.W. 858,196 Ky. 723
• Parties: D. E. HEWITT LUMBER CO. ET AL. v. BRUMFIELD.
• Court: Kentucky Court of Appeals

245 S.W. 858

196 Ky. 723

D. E. HEWITT LUMBER CO. ET AL. v. BRUMFIELD.

Court of Appeals of Kentucky.

December 8, 1922

Appeal from Circuit Court, Martin County.

Action by Frank Brumfield, administrator, against the D. E. Hewitt Lumber Company and another. From a judgment for plaintiff defendants appeal. Reversed, with directions to dismiss.

W. R McCoy, of Inez, for appellants.

J. B Clark, of La Grange, and Kirk & Kirk, of Paintsville, for appellee.

CLARKE J.

Wilson Kirk, an infant, while employed at the sawmill of the appellant D. E. Hewitt Lumber Company, was, on October 5, 1917, caught in an unprotected belt and so injured that he died a few hours thereafter. Appellee, Frank Brumfield, having been appointed and qualified as his administrator, instituted this action against the lumber company and its foreman, Charles Clay, to recover $25,000 damages for his death. A trial resulted in a judgment against the defendants for $10,000, and they have appealed.

Defendants, by the first paragraph of their answer as amended, alleged facts showing that the defendant lumber company came within and had accepted the provisions of the Workmen's Compensation Act (Ky. St. § 4880 et seq.) before the accident occurred, and was operating its plant thereunder at the time; that decedent, when he was employed by the company in July, 1917, accepted the provisions of that act as provided by subsection 74 thereof; that at the time of his employment and death he was more than 16 years of age; that he was not employed in violation of any of the provisions of section 331a of the Statutes, or any subdivision thereof, or of any law of the state regulating the employment of minors; and that by reason of these facts the court did not have jurisdiction of the action, and "this plaintiff is now estopped and barred from prosecuting this action at law against the defendants in this court."

At the next term of the court the following order was entered:

"It is agreed by the plaintiff that the defendant D. E. Hewitt Lumber Company had accepted the terms and provisions of the Workmen's Compensation Act of Kentucky, and that it was operating under same at the time complained of in the plaintiff's petition, and by agreement all other affirmative allegations of the defendant's answer are traversed of record."

It was shown by the evidence, without contradiction, that decedent, at the time of his employment and death, was over 16 years of age, and that he had accepted the provisions of the Workmen's Compensation Act as provided in subsection 74 thereof, and the only violation of section 331a of the Statutes proven against the defendant lumber company was a failure to comply with subsection 10 thereof, by properly guarding dangerous cogs, gearings, belting, and other palpably dangerous machinery.

At the close of the evidence the defendants entered a motion "to dismiss this action because this court does not have jurisdiction thereof upon the ground that the provisions of the Kentucky Workmen's Compensation Law fixes the exclusive jurisdiction hereof in the Workmen's Compensation Board." The motion was overruled, and the defendants excepted.

Subsection 3 of the Compensation Act (section 4882 of the Statutes) provides that when, at the time of the injury, both employer and employee have elected to accept the provisions of the act, the employer shall be liable to pay compensation as therein provided, and shall be released from all other liability whatsoever for injuries received by an employee by accident and arising out of and in the course of his employment, or for death resulting from such injury within two years thereafter.

This section of the act is valid and confers upon the Workmen's Compensation Board exclusive jurisdiction to award compensation for injuries to the employee where both the employer and employee have properly accepted the provisions of the act, as this court has held in many cases, one of which is Grannison's Adm'r v. Bates & Rogers Construction Co., 187 Ky. 538, 219 S.W. 806, and plaintiff does not contend otherwise, but insists that the cause of action at law for damages exists (1) under the further provisions of the act because decedent was a minor and his employment was unlawful, and (2) because the section of the act empowering minors to accept its provisions is unconstitutional and decedent's acceptance thereof was of no effect.

Provision is made by subsection 11 of the act (section 4892 of the Statutes) for the acceptance by a minor employee of the provisions of the act "except where employed in...