Sears v. Elcomb Coal Co.
| Decision Date | 09 March 1934 |
| Parties | Sears v. Elcomb Coal Company. |
| Court | United States State Supreme Court — District of Kentucky |
2. Limitation of Actions. — Dismissal of compensation claim by compensation board for lack of jurisdiction held not to extend time for filing action for personal injuries within statute providing that action could be started in proper court within three months of dismissal for lack of jurisdiction, since statute referred to bringing in proper court of identical action which was dismissed (Ky. Stats., secs. 2516, 2545).
3. Limitation of Actions. — Where employee filed claim for compensation with compensation board because of mistaken belief that he agreed to work under Compensation Act and not through mistake as to board's proper jurisdiction, dismissal of claim by board held not dismissal for lack of jurisdiction so as to extend time for starting action for personal injuries to three months after dismissal (Ky. Stats., secs. 2516, 2545).
Appeal from Harlan Circuit Court.
J.L. WILLIAMS for appellant.
WILLIAM SAMPSON for appellee.
Affirming.
On February 2, 1931, the appellant James Sears, was injured while working for the appellee, Elcomb Coal Company, in its mines in Harlan county, Ky.
In September, 1931, he filed claim with the Kentucky Workmen's Compensation Board, seeking compensation, alleging that, at the time of receiving his injury, he and his employer were working and operating under the provisions of the Workmen's Compensation Act (Ky. Stats. sec. 4880 et seq.). His employer resisted allowance of the claim upon the ground that Sears had not, at the time of receiving his injury, signed the register agreeing to accept and work under the provisions of the act.
In October, 1932, the compensation board, upon submission of the claim upon the pleadings and proof, made its award refusing compensation and dismissing appellant's application, upon the ground that it had no jurisdiction of the case, by reason of its finding that Sears had failed to show, either by his testimony or the records of the company, that he had signed the register, as required, agreeing to accept the provisions of the Workmen's Compensation Act.
Further, the appellant on February 2, 1932 — and while his application for compensation was then pending before the board — filed also his common-law action in the Harlan circuit court, seeking recovery of damages against the defendant for these injuries received upon the ground of negligence. In defense, the defendant pleaded by answer contributory negligence, the one-year statute of limitations, and the then pendency of plaintiff's application before the Workmen's Compensation Board. Plaintiff, by reply and amended replies, denied that his cause of action was barred by the one-year statute of limitations or that the provisions of the pleaded section 2516, Kentucky Statutes, were here applicable as a bar to his action, for the reason that it was tolled or avoided by the provisions of section 2545, Kentucky Statutes, which he pleaded and relied upon in avoidance of its operation.
Defendant filed demurrer to the reply and its amendments, which was sustained by the court, when, plaintiff declining to plead further, his action was dismissed with costs.
Plaintiff, complaining of the court's ruling in sustaining the demurrer to his reply, has appealed.
Section 2545, Kentucky Statutes, is as follows:
"Where an action has been or shall be commenced in due time and in good faith, in any court of this Commonwealth, and the defendants, or either of them, have or shall make defense, and it shall be adjudged that such court had or has no jurisdiction of the action, the plaintiff or his representative may, within three months from the time of such judgment, commence a new action in the proper court, and the time between the commencement of the first and last action shall not be counted in applying the limitation."
Appellant, in support of his appeal, contends that the court erred in sustaining defendant's demurrer to his reply and replies as amended and argues that the facts alleged in these pleadings were admitted by the defendant's demurrer thereto as true, at least in so far as regards their sufficiency to toll or avoid the running of the pleaded limitation against his cause of action.
The allegations of the reply and its amendments were that the plaintiff had, within eight months after receiving his injury, in good faith filed his application for compensation with the compensation board, because of his then belief that his employer and he, as its employee, were at such time each operating under the provisions of the Workmen's Compensation Act and, for such reason, that the compensation board had jurisdiction to hear and make award upon his claim. Therefore, he argues, the board's later adverse ruling and dismissal of his claim, upon the ground that it had no jurisdiction of it, constituted an adjudging "by a court...
To continue reading
Request your trial