Patrick v. Highbaugh

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEWART
Citation347 S.W.2d 88
PartiesRobert PATRICK, by Pearl Patrick, as next friend, Appellant, v. L. T. HIGHBAUGH et al., doing business as Highbaugh Farms Nursery et al., Appellees.
Decision Date02 June 1961

Page 88

347 S.W.2d 88
Robert PATRICK, by Pearl Patrick, as next friend,
Appellant,
v.
L. T. HIGHBAUGH et al., doing business as Highbaugh Farms
Nursery et al., Appellees.
Court of Appeals of Kentucky.
June 2, 1961.

Cambron, Harvin & Robinson, D. H. Robinson, Louisville, for appellant.

Peter, Heyburn & Marshall, Gavin H. Cochran, Louisville, for appellees.

STEWART, Judge.

In June, 1956, appellant, Robert Patrick, was employed by appellees, L. T. Highbaugh and others, doing business as Highbaugh Farms Nursery. Both appellant and appellees had accepted and were working under the provisions of the Workmen's Compensation Act. Appellant at this time was over 16 but not yet 17.

On June 18, 1956, appellant allegedly sustained an injury arising out of and in the course of his employment. It was stipulated that if he was injured at work, as he claims, it was a compensable injury.

On July 11, 1957, appellant by his mother, Pearl Patrick, as next friend, filed an application for compensation with the Workmen's Compensation Board. This application was dismissed on December 17, 1957, for the reason that the claim, whether compensable or not, was barred by limitations. See KRS 342.185 and KRS 342.270. Appellant did not ask for a full Board review.

Page 89

On June 25, 1958, appellant instituted this present action in circuit court, seeking to recover damages for the same alleged injury on which he had based his application for compensation. On May 13, 1959, the trial court sustained appellees' motion for summary judgment on the ground that appellant had made an election of remedies under KRS 342.170 when he filed his application under the Workmen's Compensation Act and should not be permitted to prosecute a common law action.

KRS 342.170, insofar as it is pertinent, reads:

'If any minor employe is injured or killed while being employed by the employer in willful and known violation of any law of this state regulating the employment of minors, the statutory guardian or personal representative of the minor may claim compensation under this chapter or may sue to recover damages as if this chapter did not exist. * * * If a claim for compensation is made under this section, the making of such claim shall be a waiver and bar to all rights of action on account of that injury or death as to all persons, and the institution of an action to recover damages on account of such injury or death shall be a waiver and bar of all rights to compensation under this...

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5 practice notes
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...507, 509 (1994) (party does not "elect between inconsistent remedies when he actually only has one available"); Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky.1961) (election doctrine requires two valid but inconsistent remedies and is not applicable when only one in fact exists). Our pleading......
  • Zurich American Ins. Co. v. Brierly, No. 96-SC-78-WC
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 1996
    ...the General Assembly to provide that option. The risk involved is solely that of the estate. Zurich's use of Patrick v. Highbaugh, Ky., 347 S.W.2d 88 (1961), is inapposite, and factually distinguishable. In that case, the Workers' Compensation claim had been barred by the statute of limitat......
  • Maravilla-Diego v. MBM Constr. Ii, LLC, C.A. No. N14C-03-135 PRW
    • United States
    • Superior Court of Delaware
    • July 21, 2015
    ...theory. . . is that an election of a remedy which proves to be nonexistent is no election at all."); see also Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky. 1961) ("As appellant's application for compensation benefits was already barred by limitations at the very time it was asserted, neither......
  • Maravilla-Diego v. MBM Constr. Ii, LLC, C.A. No. N14C-03-135 PRW
    • United States
    • Superior Court of Delaware
    • August 27, 2015
    ...barred" unless parties agree on compensation or appeal to the Board within 2 years of the accident). 18. Cf. Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky. 1961) (finding plaintiff did not possess a valid remedy under the Workers' Compensation Act by filing a claim that "was already barred by......
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5 cases
  • Gallipo v. City of Rutland, No. 00-217.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • December 21, 2001
    ...507, 509 (1994) (party does not "elect between inconsistent remedies when he actually only has one available"); Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky.1961) (election doctrine requires two valid but inconsistent remedies and is not applicable when only one in fact exists). Our pleading......
  • Zurich American Ins. Co. v. Brierly, No. 96-SC-78-WC
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 1996
    ...the General Assembly to provide that option. The risk involved is solely that of the estate. Zurich's use of Patrick v. Highbaugh, Ky., 347 S.W.2d 88 (1961), is inapposite, and factually distinguishable. In that case, the Workers' Compensation claim had been barred by the statute of limitat......
  • Maravilla-Diego v. MBM Constr. Ii, LLC, C.A. No. N14C-03-135 PRW
    • United States
    • Superior Court of Delaware
    • July 21, 2015
    ...theory. . . is that an election of a remedy which proves to be nonexistent is no election at all."); see also Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky. 1961) ("As appellant's application for compensation benefits was already barred by limitations at the very time it was asserted, neither......
  • Maravilla-Diego v. MBM Constr. Ii, LLC, C.A. No. N14C-03-135 PRW
    • United States
    • Superior Court of Delaware
    • August 27, 2015
    ...barred" unless parties agree on compensation or appeal to the Board within 2 years of the accident). 18. Cf. Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky. 1961) (finding plaintiff did not possess a valid remedy under the Workers' Compensation Act by filing a claim that "was already barred by......
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