Osborne Min. Co. v. Davidson

• Decision Date: 28 October 1960
• Parties: OSBORNE MINING COMPANY, Appellant, v. Fraisher DAVIDSON et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 626

339 S.W.2d 626

OSBORNE MINING COMPANY, Appellant, v. Fraisher DAVIDSON et al., Appellees.

Court of Appeals of Kentucky.

Oct. 28, 1960.

E. R. Hays, Baird & Hays, Pikeville, for appellants.

Francis M. Burke, F. Dale Burke, Pikeville, for appellee.

STEWART, Judge.

This appeal involves a claim under the Workmen's Compensation Act (herein referred to as the 'Act') for total disability caused by the disease of silicosis alleged to have been incurred which appellee, Fraisher Davidson, was employed by appellant, Osborne Mining Company.

The Workmen's Compensation Board (herein referred to as the 'Board') dismissed appellee's application. Upon appeal the circuit court set aside the order of dismissal and remanded the cause to the Board with directions that it award appellee full compensation benefits. This appeal followed.

On March 9, 1924, Fraisher Davidson, now about 58 years old, commenced working in a mine originally operated by Pond Creek Colliery and he continued to work in this same mine until September 18, 1958. His usual job was that of running a coalcutting machine. The mine changed ownership on June 2, 1955, passing from Pond Creek Colliery to appellant, Osborne Mining Company.

In January, 1955, appellee, beginning to experience shortness of breath and have chest pains, went for an examination to one Dr. Boggs, the doctor retained by Pond Creek Colliery. Dr. Boggs referred appellee to a radiologist, Dr. G. N. Combs, fo Williamson, West Virginia, and the latter's diagnosis of appellee was that he was suffering from silicosis in its second stage. Appellee and his employer, Pond Creek Colliery, were promptly informed of this diagnosis and appellee returned to the same work he had performed before it was determined he had this disease. The general superintendent, the general mine foreman, and the section foreman under whom appellee worked were also advised of appellee's silicotic condition, and appellee was thereafter seen by Dr. Boggs occasionally to check on his state of health.

On June 2, 1955, all employees of Pond Creek Colliery, including appellee, became employees of appellant automatically and simultaneously with the transfer of title to the mine to appellant. Also Dr. Boggs remained in appellant's employment, and appellee continued to consult with him and, later, with Dr. J. D. Amos, who succeeded Dr. Boggs as appellant's company physician.

On September 18, 1958, after working two hours, appellee became so disabled from his illness that he quit his job and has not worked since. In June of 1958, while appellee was 'cut off' from work, he wrote a letter (by his attorney) which advised appellant that he had silicosis and was making a claim for compensation. Appellant did not answer the letter; but thereafter, through its superintendent, offered to return appellee to work. At this time, appellant had appellee examined by its company doctor who evidently thought he was fit for employment because he gave him a 'work slip.' Appellee went back to the mine on July 15, 1958, and remained on his job until September 18th. On November 18, 1958, appellee (through his attorney) again wrote appellant claiming compensation. Receiving no answer, he filed his application with the Board.

The Board ruled that appellee's rights were to be governed by the law in effect prior to August 1, 1956, namely, KRS 342.005(2); that under this subsection the silicosis provisions of the Act must be voluntarily accepted by the parties; and that, as there was no evidence of special acceptance, the Board lacked jurisdiction to try and determine the claim.

The circuit court on appeal reversed the Board, adjudging appellant and appellee had stipulated appellee's claim should be determined in accordance with KRS 342.005 and KRS 342.395, which provisions, relating to silicosis, became the law on August 1, 1956, by virtue of a 1956 amendment of the Act. These amendments abolished a special acceptance by the parties of the silicosis provisions of the Act.

This appeal is from the ruling of the circuit court. Several grounds are advanced for reversal of the judgment, practically all of which are contentions that Davidson's claim for compensation should also have been denied for reasons other than the one the Board relied upon in dismissing his application. We shall answer these later on in this opinion, but first we shall resolve the question that we believe is determinative of this appeal, to-wit: Did the Board ocrrectly rule that it had no jurisdiction of appellee's claim?

The following stipulation agreement, so far as pertinent here, was made before a referee of the Board:

'It is stipulated and agreed that the plaintiff, Fraisher Davidson, was employed by the defendant, Osborne Mining Company, on September 18, 1958, and prior thereto; and

'That on said date and prior thereto the plaintiff and defendant had elected to, and were operating under the Workmen's Compensation Act of Kentucky.' (Emphasis ours.)

The Board found that the stipulation did not extend to and place appellee under the coverage of the 1956 amendment to the Act, noted above, which dispensed with the necessity of an election by the employer and employee to operate under the silicosis provisions. Instead the Board held KRS 342.005(2) before its amendment controlled, determined there had been no acceptance of the silicosis provisions of the Act, and then dismissed the application.

Appellant, maintaining the Board construed the words of the stipulation correctly, would have us limit the effect of the stipulatory agreement to the period when appellee's disability was first established by medical testimony, namely, sometime in January of 1955. It would then follow, so appellant argues, that the law applicable to silicosis during that time would govern.

However, we believe the stipulation is too broad and too all-inclusive in its import to restrict its scope in such a narrow manner. It recites in essence that on September 18, 1958, as well as prior thereto, appellee and appellant had elected to operate under the Workmen's Compensation Act. Since the provisions of law pertaining to silicosis are deemed to be an integral part of the Act of this state, we are unable to comprehend how any one may logically assert the whole Act was not intended to be embraced in the stipulation when the broad language employed is considered. Moreover, there is no reason to confine the stipulation to a claim based upon an 'injury' or an 'accident,' because no such claim has arisen.

We quote this excerpt from 50 Am.Jur., Stipulations, sec. 8, p. 609, which would incline us to the view that the lower court decided this issue correctly, assuming there should be a doubt concerning the question raised. It reads:

'As a general rule, stipulations should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice, and in the furtherance of fair trials upon the merits, rather than a narrow and technical one calculated to defeat the purposes of their execution. The terms of a stipulation should not, however, be so construed as to extend beyond that which a fair construction justifies. In all cases of doubt, that construction should be adopted which...