Stewart v. Wisconsin Steel Co.

• Decision Date: 28 March 1919
• Citation: 183 Ky. 730,210 S.W. 479
• Parties: STEWART v. WISCONSIN STEEL CO.
• Court: Kentucky Court of Appeals

210 S.W. 479

183 Ky. 730

STEWART v. WISCONSIN STEEL CO.

Court of Appeals of Kentucky.

March 28, 1919

Appeal from Circuit Court, Harlan County.

Action by Zeb A. Stewart, administrator of William Blanks, deceased against the Wisconsin Steel Company. From judgment for defendant, plaintiff appeals. Affirmed.

Zeb. A Stewart, of Harlan, for appellant.

Sampson & Sampson, of Middlesboro, for appellee.

QUIN J.

William Blanks, a boy about 17 years of age, was employed December 1 1915, by appellee to work in its mines at Benham, Ky.; on the 6th of December, after he had quit work for the evening and had started towards the outside of the mine, he was killed by an explosion; he was found, in an unconscious condition, with his body across the track; he was placed upon a stretcher, but expired in a few minutes, and before reaching the outside of the mine.

The appellee company maintained what is called an "Industrial Accident Department," which appears to be a plan or system adopted to provide compensation for its injured employés. This was before the passage of the Workmen's Compensation Act, approved March 23, 1916 (Acts 1916, c. 33).

In the present suit the appellant, as administrator of the estate of William Blanks, is not seeking damages on account of the negligence of the appellee, but is seeking to recover the amount claimed to be due decedent's estate under the terms and conditions of the Industrial Accident Department, which for brevity will be hereafter referred to as the I. A. D.

After sustaining a demurrer to the petition as amended, a second amendment was filed, and in the issues thus joined a trial was had, and at the conclusion of appellant's evidence there was a directed verdict for the company, from which judgment an appeal has been prosecuted. Appellant contends his decedent was entitled to the benefits of the I. A. D. as a part of his contract of employment; the contention of appellee being that under the plan of the I. A. D. no premiums or other payments were made by the employés, and it was optional with them whether they would take the benefits of the plan or elect to prosecute their claims for damages, and no benefits accrued to any employé until after disability, nor, in the event of death, to their estate until the disabled employé or his executor or administrator filed a written election to accept the benefits of the I. A. D., and waive any and all right or claim to damages. To the better understanding of the questions involved we will advert to such of the provisions of the I. A. D. as appear to be pertinent to this appeal.

Section 1 thus defines membership:

"Employés of the above-named companies, who are employed in the works, twine and lumber mills and mines, are entitled to the benefits of this plan, except those employed in the states where the company pays, or may decide to pay, compensation for industrial accidents in accordance with the provisions of Workmen's Compensation Laws."

Section 2 describes the purpose of the plan as the--

"prompt, definite, and adequate compensation for injuries resulting from accidents occurring to them while engaged in the performance of their duties; and also to provide compensation to the widow, child, children, and relatives, who may be dependent upon any employé whose death results from such accident."

Section 14, under death benefits, are these provisions:

"All death benefits shall be paid to the administrator or executor of the deceased employé, in trust for his widow, children, or other relatives, who were dependent.

No death benefits shall be paid unless death results within fifty-two weeks from the date of the accident, nor unless a written claim therefor shall be filed by the executor or administrator of the deceased employé with the board of management within three months after the employé's death."

Under section 17, defining disability, are these provisions:

"No benefits shall be paid unless the injury or death is caused, directly or solely, by an accident arising out of and in the course of the employment. * * * Benefits shall not be paid for any injury or death resulting from or caused, directly or indirectly, wholly or in part, by the intoxication or partial intoxication of the employé (page 13 of booklet), or by his failure to use the safety appliances provided by the company, or by his gross or willful misconduct."

Section 20 is as follows:

"The acceptance of any of the benefits herein provided shall operate as an election to take said benefit, and such further benefits, if any, as may become due under these rules, in full satisfaction and release of all claims against the company and all other companies associated in this department, arising out of the injury or death for which such benefits are paid. No person shall receive any benefit without first giving a written instrument evidencing such election and release. The company, upon requiring and receiving any such release, shall become obligated to pay all further benefits, if any, which may become due under these rules on account of the injury or death in question.

No death benefits shall be due or payable unless such release shall have been duly executed by all persons who might legally assert any claim growing out of the death of the employé. The commencing of any legal action whatsoever against any of the companies associated in this department on account of such injury, by the employé, or, in the event of his death, by his executor, administrator, or personal representatives, shall be a bar to the recovery of any and all benefits herein provided; but in such event the employé shall be entitled to have refunded to him any contributions paid since the receipt by him of disability benefits, and no more.

The benefits of this plan are offered upon the express condition that all the rules and regulations herein contained shall be faithfully and strictly obeyed by the employés, and a complete compliance with each and all such rules and regulations shall be and is a condition precedent to the right to receive any benefits whatsoever."

There is also in evidence a copy of the rules for the government and operation of the company's mines, approved by the chief inspector of mines, section 35 of said rules being as follows:

"The practice of carrying explosives and caps in the same package, or of storing them together, is absolutely prohibited. Explosives and tools must not be placed in or upon any empty or loaded cars."

To be entitled to the benefits of the I. A. D., employés must comply with the terms and conditions thereof, as well as the rules and regulations in regard to the operation of the mine, as set forth in rule No. 35.

Decedent left no widow or children. His mother was living in Mississippi, where she and her husband owned a farm of about 80 acres, she having married her second husband after the death of decedent's father, about 15 years ago. The company telegraphed his mother on the 7th, notifying her of her son's death, and asking what disposition to make of the body, and on the 8th they telegraphed and wrote her that it would be impossible to send her the body because the express company required embalming and shipment in a hermetically sealed casket, but these requirements could not be met, because there was no undertaker at Benham. In response to a letter from decedent's mother the company, on February 15, 1916, explained to her how her son was killed, stating that the company was not responsible for the accident. It appears from this letter that the son had a stick of coalite powder and some dynamite caps in his possession, and in some way the caps were discharged, exploding the dynamite or powder, thus causing his death.

The company again wrote the mother on the 22d of February. Responsive letters from the mother were tendered, but, while the proper foundation was not laid for their introduction, they are not of sufficient materiality to change the conclusion we have reached.

March 23, 1916, the company received from an attorney at Enterprise, Miss., the home of the mother, a letter stating he had been employed to represent the mother in a claim for damages against the company, and offering to take $5,000 in settlement of the claim. The company answered on the 25th, denying responsibility. On the same day, to wit, March 25th, the above-mentioned attorney wrote stating he was authorized to represent the mother, and asked for copy of the rules of the I. A. D.

There is another letter from the attorney under date of March 31st,...