Reliford v. Eastern Coal Corporation
| Decision Date | 10 November 1958 |
| Docket Number | No. 13284.,13284. |
| Parties | Margie RELIFORD, Administratrix of the Estate of Henderson G. Reliford, Deceased, Appellant, v. EASTERN COAL CORPORATION, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Dan Jack Combs and F. Dale Burke, Pikeville, Ky., for appellant.
J. Peyton Hobson, Jr., Pikeville, Ky. (Hobson & Stephens, Pikeville, Ky., Albert S. Kemper, Jr., Bluefield, W. Va., on the brief), for appellee.
Before ALLEN and MILLER, Circuit Judges, and MATHES, District Judge.
This appeal attacks a judgment of the District Court entered in an action based upon a contract executed July 5, 1941, by the United Mine Workers, hereinafter called UMW, and defendant Eastern Coal Corporation, hereinafter called Eastern, which covered the rights of all miners employed by Eastern. Plaintiff's decedent, hereinafter called Reliford, worked in Eastern's coal mine at Stone, Pike County, Kentucky, from July 7, 1936, until June 28, 1951. During the entire time, as required by the contract between UMW and Eastern, Reliford was a member of UMW and that union was his bargaining agent. He filled various mine occupations, such as motorman, boom man, and for a number of years was "shooting" coal. On June 28, 1951, Reliford retired because he was advised by several doctors that he had contracted silicosis.
The contract, executed July 5, 1941, between The Operators Association of The Williamson Field, of which Eastern was a member, and the local and international unions UMW, covered the general field of problems between labor and management in the coal industry. While it was denominated "Wage Agreement," it contained detailed provisions not only for wages but also for numerous subjects, such as management of mines, preparation of coal, safety practices, duties of engineers and pumpers, seniority, holidays, and adjustment of house rents. It contained a no-strike provision under which the miners were individually obligated to assist in preventing local strikes.
The particular provision involved herein required the employer to provide its employees with the benefits of the Kentucky Workmen's Compensation Act. In 1941 in Kentucky these benefits did not cover occupational diseases. However, in 1944 the Workmen's Compensation Act was amended to provide that in silicosis cases employers and employees could voluntarily subject themselves to the Act by filing a joint, voluntary application with the Workmen's Compensation Board, KRS 342.005(2). On July 1, 1947, the wage agreement of Eastern and the unions was amended to conform to the change in the statute and the provision obligating employers to provide the benefits of the Act to employees was changed to read as follows:
The situation that resulted for employees was that if they registered under the Workmen's Compensation Act they were automatically protected as to accidental injuries or death. As to disability or death resulting from silicosis, however, the filing of the joint, voluntary application by both employer and employee was an indispensable prerequisite to securing the benefits of the Act. KRS 342.005. In a silicosis case, absent the election by either the employer or the employee to operate under the Act, the Workmen's Compensation Board had no jurisdiction. The fact that the application was voluntary left the claimant who asserted that he was suffering from an occupational disease free, either to sue at common law subject to the usual defenses of contributory negligence, the fellow-servant rule, and assumption of risk, or to proceed under the Workmen's Compensation Act. In 1956 this section was amended in material respects. Some of these amendments are considered in the ruling upon the petition for rehearing.
In adoption of this contract each party, if both elected to comply with the amended Act, obtained a substantial advantage as to claims arising from silicosis. The employer would not be subject to the possible burden of a large recovery. It would be relieved of further liability. KRS 342.015(1). The employee would have the advantage of a swifter and less technical remedy than that given by litigation at common law, although he would also have the possibility of a smaller recovery. There thus was a mutual advantage and consideration for the employer's agreement to provide the benefits of the Workmen's Compensation Act as to silicosis for all employees.
The contract covering silicosis was executed July 1, 1947. At no time prior to March 1, 1952, did Eastern elect to operate under the amended statute nor did it post any notice that it had so elected. On that date it addressed a letter to the Workmen's Compensation Board of Kentucky in which it stated that it voluntarily subjected itself to the provisions of KRS 342.316. Possibly this letter, so long delayed, substantially complied with the statute (see KRS 342.390) but it did not comply with the contract. Notice of the employer's letter was not posted at the mine nor served upon Reliford or the UMW agent who was urging Reliford's claim with Eastern's claim agent.
It is contended that Reliford did not give notice of his disability within the time limitations of various provisions of the applicable statute. The District Court so held. KRS 342.005(2) and KRS 342.316(2), under familiar rules, are read into and become a part of the contract. However, in certain respects we think the statute has been misinterpreted on the question of notice. The paragraph cited requires that notice of disability or death due to silicosis be given "the employer" as soon as practicable after the employee has knowledge and requires that claim be made "upon the employer" within three years from the last injurious exposure to silica dust. Unless such notice is given, right to compensation for silicosis is forever barred.
Reliford, within a short time after he left Eastern's employ, was examined by three physicians and X-rayed at four hospitals. He was told by all doctors that he was suffering from silicosis. Prompt notice of this fact was given to Eastern by Reliford himself, who talked personally with Eastern's claim agent a number of times. His claim upon the employer was supported by UMW's agent who, as the District Court stated, "importuned the defendant in behalf of the plaintiff." During 1951, Eastern arranged to have Reliford take a physical examination with its own doctor, who reported that Reliford did not have silicosis. At the hearing herein the company doctor stated under oath that Reliford's symptoms, as shown by various X-rays introduced in evidence, taken in 1951, were consistent with the first stages of the disease. Eastern's agent, after receiving a number of letters from the UMW agent, in a letter sent October 23, 1952, refused Reliford's claim on behalf of Eastern. The letter did not rely upon the point that the claim was not timely filed, but merely declared that Reliford was not disabled because of silicosis. When the letter of rejection from Eastern's claim agent was sent the one year provided for asking a hearing before the Workmen's Compensation Board had already expired. KRS 342.270.
At a point not definitely fixed in time Reliford's attorney made application to the Workmen's Compensation Board of Kentucky, but was informed by the Board that it did not have jurisdiction because Eastern had not filed an election to operate under the silicosis provision of the Workmen's Compensation Act. The action of the Workmen's Compensation Board in refusing to take jurisdiction of the case is in accord with Kentucky decisions under KRS 342.005 (2). The Court of Appeals of Kentucky under this provision holds that if either the employer or employee does not manifest his election in accordance with the terms of the statute they are not applicable, even though both intended to operate and believed they were covered. McNeese Construction Co. v. Harris, Ky., 273 S.W.2d 355. Both employer and employee had to register. McCune v. Wm. B. Pell & Bros., 192 Ky. 22, 232 S.W. 43. Reliford therefore took no further steps before the Workmen's Compensation Board and this action was filed March 6, 1956. On April 8, 1957, plaintiff died of silicosis and his wife, Margie Reliford, as administratrix of plaintiff's estate, was substituted in the action.
The District Court denied relief and dismissed the complaint for two principal reasons. One, it held that plaintiff and defendant were under an equal obligation to enter into the voluntary joint application in writing required under KRS 342.316 and that, since plaintiff had failed to make application for benefits of the statute, defendant was not bound by its contract. Two, the court also held that Reliford's claim was barred by the one year provision of the statute of limitations applicable to personal injury.
We think that Reliford's obligation under this record was not equal to that of Eastern. Eastern, in an express written agreement intended to apply to hundreds of employees, had promised that it would "provide" the protection and coverage of the benefits under the Workmen's Compensation and Occupational Diseases Law, whether compulsory or elective. The indispensable first step in fulfilling its agreement was that Eastern itself should elect to be governed by the silicosis provisions of the Workmen's Compensation Act. A statutory form was provided for the employer for that purpose. KRS 342.390....
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