Palmer v. Main

Citation209 Ky. 226
PartiesPalmer v. Main, et al. Main v. Hail, et al.
Decision Date26 May 1925
CourtUnited States State Supreme Court (Kentucky)

1. Master and Servant — Relation May Terminate by Expiration or by Sale of Business. — The relation of master and servant may end by expiration of term of employment, by discharge or resignation of servant, or, in some instances, by sale of business.

2. Master and Servant — Relation Presumed to Continue for Reasonable Time After Sale of Business without Knowledge of Servant. — Where there is no actual change in management of business, and it is continued in same general way after sale by same servants, who are not informed of change of proprietors, relation of master and servant is presumed to continue for reasonable time, and master remains liable to servant to same extent as though no sale had taken place, and burden of showing knowledge on part of servant is on master.

3. Master and Servant — Old Employer Held Liable Under Compensation Act on Sale of Business without Knowledge of Employe. — Where at time of injury to employe, employer had sold business 15 days before injury, but relation of employer and employe still continued because of employe's ignorance of such sale, and old employer had not withdrawn his election to operate under Workmen's Compensation Act, he continued liable under such act.

4. Master and Servant — Accident "Arising Out of Employment" Defined. — An accident "arises out of employment," within meaning of Workmen's Compensation Act, when it is direct and natural result of risk reasonably incident to employment, in which injured person was engaged.

5. Master and Servant — Injury to Employe Struck by Automobile Held One "Arising Out of Employment." — Injury to employe struck by an automobile while on an errand for his master, was a direct and absolute result of risk reasonably incident to employment and was an accident "arising out of employment," within the Workmen's Compensation Act.

6. Master and Servant — New Employer Purchasing Business Held Not Liable under Compensation Act without Election under it. — The Workmen's Compensation Act is elective, and where neither employe nor employer had elected to operate under its provisions although employe had accepted provisions with previous employer but had not made election after sale to new employer 15 days before injury, employe cannot recover against new employer under such act for injuries received.

Appeals from Jefferson Circuit Court

O'NEAL & O'NEAL for appellant Earl Palmer, and appellees Egbert and Eustace Hail.

CHARLES CARROLL for Elizabeth Main.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming in each case.

Prior to September 2, 1924, Earl Palmer was the owner of the Kenyon Building in Louisville, and W.T. Main was in his employ as janitor. Both had accepted the provisions of the Workmen's Compensation Act. On September 2, 1924, Palmer sold and conveyed the property to E.A. and Eustace Hail, who continued to conduct the property as an office building. At the time of the sale W.S. Adams was the manager of the building and after the sale he continued to act in the same capacity for the purchasers. On September 17, Adams, who had charge of the building, was absent, and the acting manager had sent Main out into the city to ascertain why a certain employe had not reported for duty. While on this errand Main was struck by an automobile driven by a stranger and received injuries from which he died four days later.

Elizabeth Main, the widow of the decedent, filed with the Workmen's Compensation Board a claim for compensation against both Palmer and the Hails. It was allowed against Palmer, but refused against the Hails. On appeal to the circuit court the action of the board was affirmed. Palmer has appealed from the judgment against him, and Elizabeth Main has prosecuted a separate appeal from so much of the judgment as disallowed compensation against the Hails.

1. The propriety of the award against Palmer is challenged on the ground that the relation of master and servant is essential to liability under the Workmen's Compensation Act, and that at the time of the accident Main was not in Palmer's employ. The relation of master and servant may end by the expiration of the term of employment, by the discharge or resignation of the servant, or, in some instances, by the sale of the business. As Main was not employed for a definite period of time, and did not quit work either voluntarily or by directions of Palmer, it results that his employment under Palmer continued unless ended by the sale of the building. The rule seems to be, as between the parties, the relation of master and servant does not necessarily terminate by the sale and transfer by the master to a third person of the property and business in connection with which the relation arose and exists. On the contrary, where there is no actual change in the management of the business, and it is continued in the same general way after the sale by the same servants and employes, and the servants are in no way expressly or otherwise informed of the transfer and consequent change of proprietors, the relation is presumed to continue for a reasonable time and the master remains liable to them to the same extent as though no sale or transfer had taken place, Benson v. Lehigh Valley Coal Co., 124 Minn. 222, 114 N.W. 774, 50 L.R.A. (N S.) 170; and the burden of showing knowledge on the part of the servant is upon the master. In Beauregard v. Benjamin F. Smith Co., 213 Mass. 259, 100 N. E. 627, 45 L.R.A. (N.S.) 200, one of the defenses was that prior to Beauregard's death defendant had sold the business to another company, and that all the ways, works and machinery were owned, used and controlled by the new company, and that deceased and all the persons engaged with him in the work, including all those for whose negligence plaintiffs attempted to hold defendant answerable, were actually in the exclusive employ of the new company. Affirming the judgment the court said:

"In cases like the present the contract continues until terminated by one party with the knowledge of the other, or at least under circumstances putting him on inquiry. Not until it has been so terminated is either party released from the burden. This rule is applicable not only to the payment of wages, but to the fulfillment of the other contractual obligations. The delinquent party is held not on the actual condition of things, but on their condition as the other party has the right under the contract to assume them to be. The rule is founded upon principles of justice and fair dealing."

The board found that Main continued to work without notice of the sale of the building, and not being able to say that there was no evidence on which to base the finding, the finding will not be disturbed. As the relation of employer and employe had not ended at the time of the accident, and as Palmer then had not withdrawn his election to operate under the Workmen's Compensation Act, it follows that he continued liable under the provisions of that act.

But the point is made that the accident to Main did not arise out of his employment. It is true that many of the authorities lay down the broad rule that an accident does not arise out of the...

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13 cases
  • Warfield Natural Gas Co. v. Muncy
    • United States
    • Court of Appeals of Kentucky
    • May 24, 1932
    ...of his employer's interest. Schneider's Workmen's Compensation Law (2d Ed.) vol. 1, § 272, p. 818, and cases cited; Palmer v. Main, 209 Ky. 226, 272 S.W. 736; Fischer v. Stephens College of Columbia (Mo. 47 S.W.2d 1101. The facts here are not disputed, and therefore the question becomes one......
  • Warfield Natural Gas Company v. Muncy
    • United States
    • United States State Supreme Court (Kentucky)
    • May 24, 1932
    ...of his employer's interest. Schneider's Workmen's Compensation Law (2d Ed.) vol. 1, sec. 272, p. 818, and cases cited; Palmer v. Main, 209 Ky. 226, 272 S.W. 736; Fischer v. Stephens College of Columbia (Md. App.), 47 S.W. (2d) The facts here are not disputed, and the question becomes one of......
  • Rex-Pyramid Oil Co. v. Magan
    • United States
    • Court of Appeals of Kentucky
    • June 17, 1941
    ......572, 137 N.E. 733, 29 A.L.R. 114; Louis Katz v. A. Kadans & Co.,. 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401; Palmer v. Main. et al., 209 Ky. 226, 272 S.W. 736, 738. In the last case. the court quoted from Dennis v. A. J. White & Co.,. [1917] A.C. 479, Ann.Cas. ......
  • Harlan-Wallins Coal Corp. v. Foster, HARLAN-WALLINS
    • United States
    • United States State Supreme Court (Kentucky)
    • March 25, 1955
    ...The fallacy of this broad assertion is revealed by the rule governing cases of this character which was stated in Palmer v. Main, 209 Ky. 226, 272 S.W. 736, 738, as "'* * * The fact that the risk may be common to all mankind does not disentitle a workman to compensation, if in the particula......
  • Request a trial to view additional results

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