W.J. Fell Co. v. Elswick

• Decision Date: 02 May 1922
• Parties: W. J. FELL CO. v. ELSWICK.
• Court: Kentucky Court of Appeals

240 S.W. 373

194 Ky. 641

W. J. FELL CO. v. ELSWICK.

Court of Appeals of Kentucky.

May 2, 1922

Appeal from Circuit Court, Pike County.

Action by Thomas Elswick, Sr., as administrator, against the W. J Fell Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Auxier Harman & Francis, of Pikeville, for appellant.

Roscoe Vanover and Childers & Childers, all of Pikeville, for appellee.

CLAY J.

In the month of October, 1917, Thomas Elswick, Jr., was engaged with John Compton in cutting timber for the W. J. Fell Company, a corporation. Two or three days before the accident, Compton and Elswick had cut down a large tree, which rolled down a hill and lodged against a dead tree. They then proceeded to cut and saw into stave bolts the tree which they had previously felled and to roll them down the hill. After finishing this work, they went to a point about 30 feet below the dead tree, for the purpose of sawing down another tree. After they had been engaged in this work about an hour, the dead tree fell on Elswick and killed him.

Thomas Elswick, the father of the deceased, qualified as his administrator and brought suit to recover damages for his death. Among the defenses interposed by the defendant was a plea to the jurisdiction of the court, based on the claim that both it and the deceased had accepted the provisions of the Workmen's Compensation Act. After hearing evidence on the question, the court overruled the plea to the jurisdiction. The case was then submitted to a jury, which returned a verdict in favor of plaintiff for $4,500. The defendant appeals.

The only question we deem it necessary to determine is whether Thomas Elswick, Jr., had accepted the provisions of the Workmen's Compensation Act.

Section 4957, Kentucky Statutes, is as follows:

"Election to operate under the provisions of this act shall be effected by the employee by signing the following notice to wit:

'I hereby agree with (name of employer) to accept the provisions of chapter (33), Acts of 1916, commonly known as the Kentucky Workmen's Compensation Act.'

The election shall be effective from and including the date of signing, which shall be inserted opposite the employee's signature. In case an employee be unable to write, his mark shall be witnessed by a third person, who shall at the time read the notice to the employee. Any number of employees may sign the same notice, provided that there be conspicuously written or printed at the top of each page thereof on which signatures appear a copy of the above form of notice. If the employment be intermittent or be temporarily suspended the original acceptance of the employee shall continue effective in subsequent employment under the same employer.

Identification of such signature or mark of the employee shall constitute conclusive proof of his election to operate under the provisions of this act, in any hearing or proceeding in which such election may be material or in issue."

Section 4987, Kentucky Statutes, is as follows:

"The rule of law requiring strict construction of statutes in derogation of the common law shall not be applicable to the provisions of this act. If any section or part thereof shall be held invalid, such partial invalidity shall not affect the act as a whole or any other section or part thereof."

In the register provided by the company for the signatures of its employees who desired to accept the provisions of the Workmen's Compensation Act appears the name of John Compton, the foreman, under date of July 31st, also the following under date of August 7th: "Thomas Elswick, wit. By R. L. Spradling." Spradling testified that he was furnished the register for the purpose of having the employees sign. When the men could not write, they would ask him to write for them. Though he did not know Thomas Elswick, Jr., he was sure that the signature was in his handwriting. He did not witness any names on the book that were not given him as the name of the man that was signing up at the time. On cross-examination he stated that he did not think that Thomas Elswick touched the pen.

It is the contention of appellee that an employee's acceptance of the provisions of the Workmen's Compensation Act is...