Jellico Coal Co. v. Adkins

• Decision Date: 13 February 1923
• Citation: 197 Ky. 684,247 S.W. 972
• Parties: JELLICO COAL CO. v. ADKINS.
• Court: Kentucky Court of Appeals

247 S.W. 972

197 Ky. 684

JELLICO COAL CO. v. ADKINS.

Court of Appeals of Kentucky.

February 13, 1923

Appeal from Circuit Court, Whitley County.

Action by Morgan Adkins against the Jellico Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tye &amp Siler, of Williamsburg, and Frantz, McConnell & Seymour, of Knoxville, Tenn., for appellant.

E. L Stephens, I. N. Steely, and Stephens & Steely, all of Williamsburg, for appellee.

McCANDLESS J.

Appellant Jellico Coal Company, owns and operates a coal mine, and the appellee Morgan Adkins claims to have been injured by impure air while working as a laborer therein on and before January 26, 1920. Both parties had theretofore agreed to accept the Workmen's Compensation Act (chapter 33, Acts 1916), and Adkins filed an application for compensation before that Board, and it found:

"(1) Morgan Adkins, while employed by defendant, became ill from the effects of bad air in the mine, and on January 26, 1920, discontinued his employment. At the present time he is suffering from inflammation of the lining of the heart.

(2) No other employee in the mine at the date the claimant became ill had any bad effects from the condition existing in the mine."

Rulings of Law.

"(1) Personal injury under the common law and personal injury by accident under the Compensation Act are not synonymous.

(2) The burden of proof is on the plaintiff to show that his disability was the result of traumatic injury by accident, arising out of and in the course of his employment."

Award.

"The Board is without jurisdiction in this case, and for that reason the application for adjustment of claim is dismissed."

From this award Adkins appealed to the Whitley circuit court. In the meantime he had filed an ordinary action in that court alleging negligence, and in which action he sought to recover damages on defendant's common-law liability, and the coal company pleaded that suit in bar of his appeal. The circuit court adjudged the plea good, but further affirmed the action of the Workmen's Compensation Board in finding it had no jurisdiction of the matters involved. Thereupon the coal company pleaded the proceedings before the Board of Compensation in bar of this action. This was overruled, and it traversed the petition and pleaded contributory negligence. A trial resulted in a verdict and judgment in favor of appellee for $2,250. The coal company appeals, and for reversal assigns a number of alleged errors.

It is claimed that the appellee himself was guilty of contributory negligence, and that his injuries are not the proximate result of the negligence alleged, and that the court erred in its instructions. Further, appellant insists that, when both parties accept the Workmen's Compensation Act, such Compensation Board is given jurisdiction to hear and determine all claims for injuries to the employee, except as provided in the act. It argues that the compensation provided in the act is substitutional, and not cumulative, and therefore it is exclusive of all common-law remedies; that at any rate, the appellee having elected to claim compensation before the Board, and it having dismissed the claim, he cannot seek any further relief.

Our Compensation Act was approved March 23, 1916. Prior to that time compensation acts had been enacted in England and in many of the states of the Union. While differing in some respects, in a general way these acts are all of a similar nature, and at that time had been the subject of judicial construction. Such acts have at all times been the subject of favorable comment by the courts, but even then confusion had arisen to the meaning and application of the various terms therein, especially as to the phrase "personal injury by accident," and also as to the application of the act to diseases, more particularly as to the so-called "occupational" and "industrial" diseases, so much so that we find Lord Churchill Halden quoted as saying:

"Having regard to the conflict which exists between judicial opinions expressed in some of the decided cases, the only safe guide appears to me to be in the language of the Parliament itself." 27 R. C. L. 799.

The Legislature presumably knew of this confusion, and undertook to make its meaning clear on this question by defining the disputed terms.

Section 1 of the act (section 4880, Ky. Stattutes) provides:

"It shall effect the liability of the employers subject thereto to their employees for personal injuries sustained by the employee by accident arising out of and in the course of his employment, or for death resulting from such accidental injury; provided, however, that personal injury by accident, as herein defined, shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident, nor shall they include the results of a pre-existing disease."

Section 3 of the act (section 4882, Ky. Statutes) provides:

"Whereas at the time of the injury both employer and employee have elected to furnish or accept compensation under the provisions of this act for a personal injury, 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, the employer shall be liable to provide and pay compensation under the provisions of this act and shall be released from all other liability whatsoever; provided, however, that if injury or death result to an employee through the deliberate intention of his employer to produce such injury or death, the employee or his dependent as herein defined shall receive the amount provided in this act in a lump sum to be used, if they so desire, to prosecute the employer, and said dependents shall be permitted to bring suit against said employer for any amount they may desire; that if injury or death results to an employee through the deliberate intention of his employer to produce such injury or death, the employee or his dependents as herein defined shall have the privilege to take under this act, or in lieu thereof, to have a cause of action at law against such employer as if this act had not been passed, for such damages so sustained by the employee, his dependents or personl representatives as may be recoverable at law. If a suit is brought under this section, all rights to compensation under the provisions of this act shall thereby be waived and void as to all persons, and if a claim is made for the payment of compensation or any other benefit provided by this act, all rights to sue the employer for damages on account of such injury or death shall thereby be waived and void as to all persons."

If the Legislature had desired to make "occupational" diseases cempensable, it had a precedent in the English law; if it had desired to adopt a liberal course in making such injuries compensable by the Board without going to the extent of the English statute, it could have found a precedent in the Massachusetts statute, in which the word "accident" is omitted; or, if it had intended to allow compensation for such diseases as were occasioned by accidental injury to the employee, it had a precedent in the statutes of a dozen or more of the states. It is clear that it did not intend to fully adopt any of the former acts, and that it meant to restrict compensation through this act to such diseases as were the "natural and direct result of a traumatic injury by accident," and not to include the results of a pre-existing disease.

Obviously the construction of...