Davis v. Solomon

• Citation: 276 S.W.2d 674
• Parties: Mignon DAVIS, Administratrix of the Estate of Stanley Davis, Deceased, Appellant, v. L. A. SOLOMON, formerly doing business as Rural Electric Service Company, Appellee.
• Decision Date: 28 January 1955
• Court: United States State Supreme Court — District of Kentucky

Page 674

276 S.W.2d 674

Mignon DAVIS, Administratrix of the Estate of Stanley Davis Deceased, Appellant, v. L. A. SOLOMON, formerly doing business as Rural Electric Service Company, Appellee.

Court of Appeals of Kentucky.

Jan. 28, 1955.

As Modified on Denial of Rehearing March 25, 1955.

Waller, Threlkeld & Whitloe, William B. Byrd, Paducah, for appellant.

Lovett, Lovett & Lovett, John C. Lovett, Benton, for appellee.

CLAY, Commissioner.

This civil action was brought against an employer to recover damages for the death of an employee. The complaint was dismissed on defendant's motion for summary judgment.

For the purposes of this appeal the facts are not in dispute, and the question presented is one of law. That question is whether or not the acceptance of the provisions of the Workmen's Compensation Act by the employer and employee bars an action for wrongful death under KRS 411.130 by the employee's representative when the latter's death, occurring four years after an accident and resulting from a compensable injury, was the result of the employer's negligence in causing it.

On November 5, 1948, while the employee and the defendant were subject to the provisions of the Workmen's Compensation Act, the former suffered an injury arising out of and in the course of his employment. Subsequently the employee was paid compensation benefits and medical expenses. On April 3, 1953, more than four years after the accident, the employee died as a direct result of the original injury sustained. Suit was brought for wrongful death on the ground that it was caused by the negligence of the employer.

It is the contention of the plaintiff that the Workmen's Compensation Act does not authorize the recovery of compensation thereunder if the employee's death occurs more than two years after the accident. This contention is based on KRS 342.070, which provides for the payment of burial expenses and compensation to dependents 'If death should result within two years from an accident for which compensation is payable * * *.' The argument is then made that since the death of the employee was not compensable under the Act, the employee's representative has an independent cause of action under Section 241 of the Kentucky Constitution and KRS 411.130.

At first blush this appears a plausible argument, but it ignores the purpose of and other provisions of the Workmen's Compensation law.

KRS 342.005(1) provides that the Workmen's Compensation Act:

'shall affect the liability of the employers subject thereto to their employes for a personal injury sustained by the employe by accident arising out of and in the course of his employment, or for death resulting from such accidental injury; * * *.'

KRS 342.015(1) provides as follows:

'Where, at the time of the injury both employer and employe have elected to furnish or accept compensation under the provisions of this chapter for a personal injury, received by an employe by accident and arising out of and in the course of his employment, or for death resulting from such injury, within two years thereafter, the employer shall be liable to provide and pay compensation under the provisions of this chapter and shall, except as provided in subsection (2) of this section and in KRS 342.170, be released...