Elkhorn Coal Corporation v. Kerr

• Decision Date: 17 June 1924
• Citation: 263 S.W. 342,203 Ky. 804
• Parties: ELKHORN COAL CORPORATION v. KERR.
• Court: Kentucky Court of Appeals

263 S.W. 342

203 Ky. 804

ELKHORN COAL CORPORATION v. KERR.

Court of Appeals of Kentucky.

June 17, 1924

Appeal from Circuit Court, Floyd County.

Action by James Kerr against the Elkhorn Coal Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

O'Rear Fowler & Wallace and J. Woodford Howard, all of Frankfort and E. W. Pendleton and Smith & Combs, all of Prestonsburg for appellant.

C. B Wheeler, of Prestonsburg, for appellee.

SANDIDGE C.

Appellee, James Kerr, sued appellant, Elkhorn Coal Corporation, to recover $3,000 damages for injuries received by him while an employee of it, engaged in loading coal in one of its coal mines. He claimed by his petition that while so at work he was seriously and permanently injured by breathing foul and impure air and poisonous and noxious gases, which appellant had negligently permitted to accumulate and remain in its mine. Appellant denied the negligence charged, and by a second paragraph pleaded that its mine was skillfully operated and equipped with appliances for ventilation in strict compliance with the statutes applicable thereto, and that the injury, of which appellee complained, was merely one of the ordinary risks incident to, and which he assumed when he accepted, the employment. By a third paragraph it pleaded that it was operating under the provisions of the Workmen's Compensation Law of Kentucky, that the plaintiff had accepted its provisions when he entered their employ, and that these facts barred appellee's right to recover in an action at law.

Appellee demurred to the second and third paragraphs of appellant's answer, and, without waiving it, by reply traversed their averments, and pleaded affirmatively that his injury was not within the purview of the Workmen's Compensation Act. By an amended answer, appellant pleaded that appellee's injury was caused by his own contributory negligence. An agreed order was entered controverting of record the affirmative allegations of the amended answer and reply. The court below sustained the demurrer to the third paragraph of appellant's answer. The jury awarded appellee a verdict of $750, on which the court duly entered judgment, and, appellant's motion and grounds for a new trial having been overruled, it prosecutes this appeal.

Appellant urges as grounds for reversal the action of the court below in sustaining the demurrer to the paragraph of its answer pleading the provisions of the Workmen's Compensation Act in bar of appellee's right to recover, and the failure of the court below to peremptorily instruct the jury to find for it at the conclusion of the evidence, upon the theory that the injury sued for herein is one compensable under that act. Appellant cites and quotes from opinions of the courts of last resort of a number of other states, which seem to sustain its contention. However, we find that the Workmen's Compensation Acts of the various states differ in their provisions and phraseology, and the decision of such questions always turns upon a construction of the peculiar phraseology of the act in question. The particular question presented as to whether or not an injury resulting from breathing foul and impure air and poisonous and noxious gases comes within the purview of the Kentucky Workmen's Compensation Act, and is compensable under it, has heretofore been presented to and determined by this court. It will be observed that by section 4880, Kentucky Statutes, the Kentucky Workmen's Compensation Act affects the liability of the employer only for personal "injuries" sustained "by accident" arising out of and in the course of employé's employment, and expressly excludes diseases, except such as are "the natural and direct result of a traumatic injury by accident." Construing the statute, in Jellico Coal Co. v. Adkins, 197 Ky. 684, 247 S.W. 972, we said:

"It will be observed that all of these definitions of 'trauma' and 'traumatic' imply the presence of physical force, and this is the generally accepted meaning of the word. Evidently the act implies that some external physical force actually directed against the body must occur in order to constitute traumatic injury by accident."

And:

"We therefore conclude that diseases of an employé, contracted in the course of his employment and arising out of it, occasioned by negligence of the employer, and not caused by traumatic injury, are not compensable under the act, but that for such diseases he may have an action at common law; further that, as the board of compensation had no jurisdiction of the claim, a proceeding in that tribunal did not bar an action at law, and the court did not err in so holding."

We may add with reference to the facts of that case that the injury complained of was one resulting from breathing impure air and poisonous gases in a mine. In the light of the construction placed upon the Kentucky Workmen's...