McNeese Const. Co. v. Harris
| Citation | 273 S.W.2d 355 |
| Parties | McNEESE CONSTRUCTION COMPANY, Appellant, v. Delcie HARRIS et al., Appellees. |
| Decision Date | 03 December 1954 |
| Court | United States State Supreme Court (Kentucky) |
John P. Sandidge, Woodward, Hobson & Fulton, R. I. McIntosh, Louisville, for appellant.
C. A. Cameron and Maddux & Cameron, Cookeville, Tenn., for appellees.
STANLEY, Commissioner.
This workmen's compensation case involves a question of the acceptance of the provisions of the Act, KRS 342.001 et seq.
Willis D. Harris, an employee of the McNeese Construction Company, engaged in erecting a building in Paducah, was accidently struck on the forehead with a hammer by a fellow employee. This occurred May 14, 1951. He was given first aid treatment and continued to work until June 7, when he quit to go to his home in Clarksville, Tennessee. The next day in Nashville Harris suffered further injury about the head and was placed in a hospital where he died on June 24. The Compensation Board found that his death resulted from the injury he received during his employment by McNeese and awarded his family the aggregate sum of $8,500 compensation, plus $2,500 hospital and medical expenses (although it appears he incurred none) and $300 funeral expenses. The award was confirmed by the circuit court.
The appellant concedes there was some evidence to support the finding that Harris' death was caused by the injury. But it contends neither it nor the employee had accepted the provisions of the Kentucky Workmen's Compensation Act.
The company's headquarters were in Tennessee. It moved its equipment into Kentucky in December, 1950. It was not then familiar with our practices and was not advised of the necessity of filing with the Kentucky Workmen's Compensation Board notice of its acceptance of the provisions of our Act and did not do so until July 28, 1951. However, the company had added the names of its men at work in Kentucky to its insurance register kept in Tennessee and paid premiums thereon. On July 28 the company filed with the Board its form No. 1, which follows the form laid down in KRS 342.390. In the space provided for insertion of the date on which the election was to be effective was written, '1st day of April, 1951.' Thus, there was an attempt to make acceptance retroactive. This date, it will be observed, antedated Harris' injury, but the date of filing of the notice was 78 days after the accident and 37 days after his death.
All parties agree there is no element of estoppel in the case. Claim to compensation rests on waiver, the elementary legal definition of which is the intentional, voluntary relinquishment of a known right, which may imply a purpose to forego some advantage which a party might at his option have demanded and insisted on. Ballentine, Law Dictionary. The concept of waiver seems to be that by making retroactive the effective date on which the company desired to come under the Act, it waived any right to claim the injury was not covered.
Our Workmen's Compensation Act is optional or elective rather than compulsory. The relationship established is contractual in nature. This is necessary in order for the Act to stand the test of constitutionality. Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, Ann.Cas.1918B, 604; McClary v. McClary, 274 Ky. 299, 118 S.W.2d 687.
It is important to note this case arose before the amendment of KRS 342.395 in 1952. Ch. 82, Acts of 1952.
If either the employer or the employee rejected or did not manifest his election in accordance with the terms of the statute, they were not applicable, even though both intended to operate and believed they were covered. Horn Transfer Line v. Reed, 287 Ky. 536, 154 S.W.2d 344; McClary v. McClary, supra, 274 Ky. 299, 118 S.W.2D 687. The statute not only prescribes the procedure and forms for acceptance of the Act by the employer, KRS 342.390, but as well, before amendment, prescribed the manner in which the employee's notice of acceptance should be manifested. It was by the definite written agreement set forth in KRS 342.395.
In Shevchenko v. Detroit United Railway, 189 Mich. 421, 155 N.W. 423, a claim was filed with the Industrial Accident Board for injuries received October 7, 1912. During the course of the proceedings it was developed in an informal way that the employer had not elected to come under the terms of the Workmen's Compensation Act until December 23, 1912. The Board found that the employer, by having treated the case as an accident occurring while it was under the law without having raised the question, had waived the point. But the Supreme Court held that the relations existing between the respondent and the claimant when the injury was received were not affected by the Workmen's Compensation Act, the the Board had exceeded the special and limited powers conferred upon it by the statute and was without jurisdiction to make the award. The court set it aside. This case is noted for its similarity to the case at bar. If the fact that the statutory form of application and notice provides for an effective date other than that on which it is filed be regarded as permitting a retroactive...
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