Simmons v. Clark Const. Co.

• Decision Date: 29 March 1968
• Citation: 426 S.W.2d 930
• Parties: Junius L. SIMMONS, Appellant, v. CLARK CONSTRUCTION COMPANY and Towers Motor Inn, Inc., Appellees. Oliver Lee PATE, Administrator of the Estate of Walter Allen Pate, Deceased, Appellant, v. CLARK CONSTRUCTION COMPANY and Towers Motor Inn, Inc., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 930

426 S.W.2d 930

Junius L. SIMMONS, Appellant, v. CLARK CONSTRUCTION COMPANY and Towers Motor Inn, Inc.,

Appellees.

Oliver Lee PATE, Administrator of the Estate of Walter Allen

Pate, Deceased, Appellant, v. CLARK CONSTRUCTION COMPANY and Towers Motor Inn, Inc.,

Appellees.

Court of Appeals of Kentucky.

March 29, 1968.

George S. Wilson, III, Wilson & Wilson, William M. Gant, Gant & Carroll, Owensboro, for appellants.

Ridley M. Sandidge, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.

STEINFELD, Judge.

On December 11, 1962, Clark Construction Company (hereinafter Clark) contracted with Towers Motor Inn, Inc. (hereinafter Towers) to erect a building in Owensboro, Kentucky. On October 24, 1963, Junius L. Simmons and Oliver Lee Pate, regular employees of Edward Rold, d/b/a Owensboro Window Cleaning Service, a subcontractor of Clark, were directed by Clark to mount a horizontal scaffold or hoist to clean the metal and glass on the exterior of that building. The scaffold, hoist, all appliances and telephone linemen type safety belts used by or for Simmons and Pate were furnished exclusively and maintained by Clark. The scaffold upon which the two workmen were hoisted was suspended from a cable which was raised and lowered by a large crane operated by Clark. To a hook at the end of the crane's cable were attached cable harnesses supporting either side of the scaffolding. At each end of the scaffold there were clamps to which the cable was attached.

The two men were hoisted, and while working at either the 9th or 10th floor the free end of the cable supporting one end of the scaffold slipped through the clamp, leaving that end of the scaffold unsupported. It dropped causing the scaffold to be suspended in a vertical position. The men were thrown against their safety belts which broke and they fell approximately 80 feet. Pate was killed and Simmons was seriously, permanently and painfully injured.

Both men were covered by Rold's Workmen's Compensation Insurance. Simmons claimed and was awarded Workmen's Compensation payments but Pate's administrator made no claim under the Act. Pate had no dependents.

Simmons and Pate's administrator each brought suit against Clark and Towers in which they claimed that the injury to Simmons and the death of Pate were caused and brought about by the unsafe working conditions and the failure of Clark and Towers to furnish safety devices and scaffolding according to law. KRS 338.030; 338.160. The claim against Towers also was predicated upon the theory that the work was inherently dangerous and that Towers was responsible for the negligence of Clark even though Clark was an independent contractor. State Automobile Mutual Insurance Company intervened for the purpose of obtaining reimbursement for any monies which it had paid or would pay to Simmons under the provisions of the Workmen's Compensation Act. The actions were consolidated and were concluded by the entry of a summary judgment denying relief from which Simmons and Pate's administrator appealed.

KRS 446.070 was adopted in 1892. It provides:

'A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.'

In 1916 the Workmen's Compensation Act became effective and brought under the provisions of that Act (except where specifically excluded by the Act) all claims of employees against their employers in instances in which the two had agreed to coverage by the Act. KRS 342.015(1). KRS 342.060 which is a part of that Act provides in part that:

'A principal contractor, intermediate or subcontractor shall be liable for compensation to any employe injured while in the employ of any one of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. * * *.'

The latter was construed in Whittenberg Engineering and Construction Co. v. Liberty Mutual Ins. Co., Ky., 390 S.W.2d 877 (1965) to mean that the general contractor is, in effect, the employer of the employee of the subcontractor and enjoys the legal immunity of an employer from an action by the employee of the subcontractor when liable for compensation. To avoid KRS 342.015(1), 342.060 and Whittenberg the two claimants rely on the sequence of enactments of statutes which we will discuss, and they claim that the alleged immunity of Clark under those statutes violates Sections 54 and 241 of the Kentucky Constitution.

KRS 338.030 is the safe place of employment law but does not make the employer or any one else an insurer. Crush v. Kaelin, Ky., 419 S.W.2d 142 (1967). KRS 338.160 requires that safe devices be supplied to persons engaged in the type of work that Simmons and Pate were performing. Both statutes were adopted long after the Workmen's Compensation Act (KRS Chapter 342) became the law of this state. Appellants contend that claims asserted in reliance on either of those two statutes are not embraced by the Workmen's Compensation Act. They also argue that KRS 446.070 when read together with KRS 338.030 and 338.160 reveals that a conflict exists.

Appellants cite Morton v. Auburn dale Realty Co., Ky., 340 S.W.2d 445 (1960); Nashville Bridge Co. v. Marsh, 212 Ky. 728, 279 S.W. 1099 (1926); Gannon v. Chicago, M., St. P., and P. Ry. Co., 13 Ill.2d 460, 150 N.E.2d 141 (1958). The cited cases do not convince us that there is merit in the contention made by appellants. When KRS 338.030 and 338.160 were enacted there was neither specific nor implied repeal of the Workmen's Compensation Act. Miller v. Scott, Ky., 339 S.W.2d 941 (1960). There is no conflict between those safety standard laws and the provisions of the Workmen's Compensation Act.

In Davis v. Solomon, Ky., 276 S.W.2d 674 (1955), we said:

'It seems clear to us that in the event of an accident arising out of and in the course of employment, where the employer and employee have elected to operate under the Workmen's Compensation Act, compensation may only be obtained in a proceeding before the Workmen's Compensation Board (except for an intentional injury inflicted by the employer as provided in KRS 342.015(2)). The Board has original and exclusive jurisdiction of all claims within the purview of the Act. Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943; Moore v. Louisville Hydro-Electric Co., 226 Ky. 20, 10 S.W.2d 466. The purposes of the Act would be defeated if independent actions to recover damages for injuries or death caused by a compensable accident were permitted. Sturgill's Adm'r v. Howard, 218 Ky. 57, 290 S.W. 1048; Morrison v. Carbide & Carbon Chemicals Corporation, 278 Ky. 746, 129 S.W.2d 547.'

We reject both contentions and hold that the Workmen's Compensation Act is a bar to the claims made against Clark. McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068 (1925). Also see Peters v. Radcliff Ready Mix Concrete, Inc., Ky., 412 S.W.2d 854 (1967).

Appellants argue that Sections 54 and 241 of the Kentucky Constitution prohibit the application of the immunity provisions of the Workmen's Compensation Act to Clark. Section 54 provides:

'The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.'

The part of Section 241 upon which they rely states:

'Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every case, damages may be recovered for such death, from the corporations and persons so causing the same. * * *.'

The constitutionality of the Act as to claims between employer and employee is well established. Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916); Norrington v. Charles E. Cannell Co., Ky., 383 S.W.2d 137 (1964). We are unwilling to depart from our decision in McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068 (1925) that an employee of a subcontractor could not successfully sue the principal contractor for common law damages. Also see Miller v. Scott, Ky., 339 S.W.2d 941 (1960); and Peters v. Radcliff Ready Mix Concrete, Inc., Ky., 412 S.W.2d 854 (1967).

Relying upon Jennings v. Vincent's Adm'x, 284 Ky. 614, 145 S.W.2d 537 (1940) and other cases, appellants contend that Towers, the owner, is liable on the theory that the work Simmons and Pate was doing was inherently dangerous and that the owner was responsible even though Clark was an independent contractor. In Jennings we said:

'* * * the general rule regarding the liability of the owner of property as to injuries and damages resulting from the acts of an independent contractor is that such owner is not liable unless the work to be done by the independent contractor is in itself a nuisance, or necessarily results in a nuisance, or unless the work or the instrumentality for doing it is inherently dangerous. But where the work is not a nuisance and is not inherently dangerous and the injuries or damages are caused by the negligent manner in which the independent contractor performs his task, then the owner is not liable. The rule as expressed in 39 C.J. 1331, § 504, is to the effect that if the work is of such a nature that it will probably, and not which merely may, cause injury if the proper precautions are not taken, the owner is liable; but if it can be accomplished without probable injury, except in the event of negligence, no liability attaches to the owner.'

Appellants also cite Jones v. Russell, 224 Ky. 390, 6 S.W.2d 460 (1928) which upheld the 'Scaffolding Act', now KRS 338.160 and say the opinion refers to workmen engaged in hazardous employment.

They argue that Kennerly v. Shell Oil Company, 13 Ill.2d 431, 150 N.E.2d 134 (1958) sustains their contention that Towers must be held liable. Kennerly was a suit by an employee of a general contractor against the owner of the premises on which he was working. The Illinois court...