Penn's Adm'r v. Bates & Rogers Const. Co.

• Decision Date: 28 January 1919
• Citation: 209 S.W. 513,183 Ky. 529
• Parties: PENN'S ADM'R v. BATES & ROGERS CONST. CO.
• Court: Kentucky Court of Appeals

209 S.W. 513

183 Ky. 529

PENN'S ADM'R v. BATES & ROGERS CONST. CO.

Court of Appeals of Kentucky.

January 28, 1919

Rehearing Denied March 25, 1919.

Appeal from Circuit Court, Mason County.

Suit by William Penn, as administrator of the estate of Harvey Penn deceased, against the Bates & Rogers Construction Company, to recover damages for the wrongful death of plaintiff's intestate. From a judgment sustaining a demurrer to and dismissing the petition, the plaintiff appeals. Affirmed.

H. W Cole and A. D. Cole, both of Maysville, for appellant.

Stanley F. Reed, of Maysville, for appellee.

CLAY C.J.

William Penn, as administrator of Harvey Penn, brought this suit against the Bates & Rogers Construction Company, a corporation, to recover damages for his death. The petition alleged facts showing that the death of the deceased was caused by the gross negligence of the defendant, its agents and servants. The petition further alleged that the deceased had signed a contract, electing to receive benefits under the Workmen's Compensation Act (Laws 1914, c. 73), and that the defendant had also accepted the provisions of that act. A demurrer was sustained to the petition, and the petition dismissed. Plaintiff appeals.

Section 241 of the Constitution is as follows:

"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the personal estate of the deceased person."

Plaintiff contends that this section of the Constitution gives to the administrator of an employé, whose death resulted from an injury inflicted by the negligence or wrongful act of another, an absolute right of action which the employé himself could not contract away by agreeing to accept, in lieu thereof, the benefits provided by the Workmen's Compensation Act. We do not deem it necessary to discuss the question further than to say that it was fully considered by the court in the case of Kentucky State Journal Co. v Workmen's Compensation Board, 162 Ky. 387, 172 S.W. 674, L. R. A. 19...