Wallins Creek Lumber Co. v. Blanton

• Decision Date: 22 March 1929
• Citation: 228 Ky. 649
• Parties: Wallins Creek Lumber Company et al. v. Blanton.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 649

Wallins Creek Lumber Company et al. v. Blanton.

Court of Appeals of Kentucky.

Decided March 22, 1929.

Master and Servant. — Since partnership was under no liability, under Workmen's Compensation Act (Ky. Stats., sec. 4880 et seq.), to partner for injuries sustained while performing the services of employee in its sawmill at specified salary, compensation insurer could not be held liable for such injuries in proceeding under Workmen's Compensation Act, even though salary paid to partner

for such services was included in pay roll on which premium of insurance policy was calculated, since one cannot be both employer and employee.

Appeal from Harlan Circuit Court.

SAMPSON & SAMPSON for appellants.

G.G. RAWLINGS for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

The appellant Wallins Creek Lumber Company is a copartnership, the members of which are E.W. Blanton, W.H. Blanton, and the appellee, C.H. Blanton. It is engaged in manufacturing lumber, and works under our Workmen's Compensation Act (Ky. Stats., sec. 4880 et seq.). The firm insured its liability under that act with the Ocean Accident & Guarantee Corporation. At the time it effected that insurance the appellee, C.H. Blanton, one of the copartners, was working at one of the saws in the firm's mill. He drew a stated salary from the partnership, which was included in the pay roll on which the premium of the insurance policy was calculated. It is in evidence that, at the time the partnership insured its liability under the Compensation Act, the partners told the agent of the insurance company that they wished to be protected, meaning thereby "individual protection"; that this agent assured them that they would be under the policy which he would deliver to them, and that he repeated this assurance when he did deliver the policy.

Thereafter the appellee, Blanton, was hurt by having two fingers cut off by the saw at which he was working, and it is conceded that, if he were an employee of the partnership, he would be entitled to compensation under our Workmen's Compensation Act. A report of the accident was made out for the partnership and signed by E.W. Blanton. In this report it was stated that "the name of the injured employee" was C.H. Blanton. This report was sent to the office of the insurance company at Louisville. The agent there in charge of adjusting claims, being in ignorance of the fact that C.H. Blanton was a member of the firm and thinking that he was only an employee, filled out and signed an agreed order of compensation, known as "Form 9," which was sent back to C.H. Blanton. The latter signed it, and it was presented to the Workmen's Compensation Board, which approved it. Under the Compensation Law, when thus affirmed, this agreement had the same force and effect as an award. Kentucky Statutes, sec. 4931.

The insurance company at the same time paid to C. H. Blanton the compensation which had accrued up to the time of the entry of this agreement. Before anything further was paid under this agreement, the insurance company discovered that...