197 S.W.2d 432 | Ky. Ct. App. | 1946
Affirming.
The appellee, Frankfort Cincinnati Railroad, operates a steam railway between Frankfort, Kentucky, and Paris, Kentucky. On December 20, 1944, Med Campbell was one of its employees as a member of a section crew, the foreman being Jonas Hedges. On that day the crew in a railroad motor car was on its way to work, and at a grade crossing in Scott County there was a collision between the railroad car and a truck traveling on state highway No. 25 resulting in the death of Campbell. He left a will and it appointed appellant, H.J. Johnson, executor of his estate.
The highway truck which collided with the railroad car was owned and operated by R.L. Parker. Appellant as such executor filed this action in the Scott circuit court on February 5, 1945, against the railroad company and Parker jointly, seeking to recover damages in the sum of $15,150 for the alleged negligence of both defendants in bringing about the collision resulting in decedent's death. Parker though summoned did not answer or take any steps in defense of the action against him, although *258 he is designated as an appellee on this appeal but no judgment was rendered either for or against him. Therefore, the case so far as he is concerned, is not before us, and this opinion will not affect any rights of appellant as against him. The railroad company answered denying, in general terms, the material allegations of the petition, except it stated that its business as a carrier was only between the two points of its termini, both of which were entirely within the Commonwealth of Kentucky.
In a second paragraph it alleged that on June 6, 1931, it — as such intrastate carrier only — made application to the compensation board of Kentucky to be permitted to operate its railroad under our compensation act as is provided in subsection (2) of KRS
The pleading in describing the method pursued by which defendant and decedent each brought themselves within the provisions of the act, states in more detail than we have done every act performed by both appellee and its employee, Med Campbell, showing that what was done was in complete compliance with the provisions of the section of the statute supra. The first part of its first subsection makes the act applicable "to all employers having three or more employes regularly engaged in the same occupation or business." That language is followed by this exception: "That it shall not apply to *259 domestic employment, agriculture, steam railways, or such common carriers other than steam railways for which a rule of liability is providet by the laws of the United States, etc."
It will thus be seen that appellee being a steam railway was not covered by the act in the first excerpt we have taken therefrom. But the second subsection of the same section says: "Any employers and employes who are by the provisions of this section excepted from the provisions of this chapter, including employers having less than three employes, may subject themselves thereto by joint, voluntary application to the board, in writing, for such period as may be stated in the application, which shall be irrevocable during such period and effective thereafter until a written revocation be filed with the board or the employment be terminated, and any employers and their employes may, with respect to the disease of silicosis caused by the inhalation of silica dust, in like manner voluntarily subject themselves thereto as to such disease."
Plaintiff demurred to the second paragraph of appellee's answer which the court overruled, and upon plaintiff declining to plead further the action as to appellee was dismissed, from which plaintiff prosecutes this appeal.
The only argument by appellant's counsel in this court for a reversal of the judgment is the interpretation which they place on subsection (2) of section
A cardinal rule for the interpretation of statutes — if there is any doubt from the language employed as to the intent and purpose of the Legislature in enacting it — is that courts should avoid adopting a construction which would be unreasonable and absurd in preference to one that is "reasonable, rational, sensible and intelligent" as is stated in the text of 50 A. J. in treating of Statutes, page 385, sec. 377. That rule, as we have said, is universally applicable to the involved statute in this case, even if we should consider that the language of subsection (2) of section
The question as to the proper interpretation of statutes has been before this court in a great number of cases. Perhaps the latest one is that of Swift v. Southeastern Greyhound Lines,
In addition to the inserted excerpt supra from Crawford on Statutory Construction, the opinion in the Swift case also said: "It is never to be presumed that the legislature intended to enact an absurd statute. * * * No one could insist seriously that the wording in the Statute in question, as it now stands, would constitute other than an absurdity."
It is also a general rule — too familiar to require the citation of authorities — that the intent of the Legislature, as gathered from all parts of the statute, should be the one to be administered. The latest case from this court so holding is Oates v. Simpson,
We feel constrained to approve the interpretation contended for by appellee's counsel to the effect that when an initially excepted employer from the benefits *262 of the act later accepts its benefits by complying with a prescribed formula in the act, he or it remains under the act until he either declines to further operate under it and so manifests that purpose to the Board in compliance with other provisions of the statutes. We can see a reason for the provision that in the initial acceptance of the act by one who is excepted therefrom should accompany his application with the consent of those then employed by him, before obtaining the right to operate under the act. Such employees, not theretofore operating under the act, might bring themselves thereunder by jointly applying to the board for such right, since theretofore at the time of their employment their employer, being excepted from the act, was not required to keep a register for his or its employees to sign. Employees thereafter employed would sign the register kept by the employer the same as is required of those employees initially beneficiaries under the act.
Appellant nowhere contends that appellee was engaged in any manner in interstate commerce, but was exclusively an intrastate carrier, or that it in any manner was engaged in interstate commerce so as to be regulated by any federal statute as to its liability for injury to or death of an employee. If appellee were engaged to any extent in interstate commerce the burden was on appellant to allege and prove that fact. Horovitz on Compensation, pages 46-55; Johnson, Admr. v. Southern Pacific Co.,
Since both parties to the employment legally and properly brought themselves under the provisions of our Workman's Compensation Act the remedy for the recovery of compensation for the death of decedent, the employee, is exclusively that provided by that act, if decedent left surviving him dependents, and which we and other courts have held supplants and supersedes the common-law action for the recovery of damages based upon negligence of the employer. It therefore follows that the court properly overruled the demurrer to the *263 second paragraph of appellee's answer, and in dismissing the action as to it when appellant declined to plead further.
Wherefore the judgment is affirmed.