64 S.W.2d 426 | Ky. Ct. App. | 1933
Affirming.
The appellee, having received an injury in the course of and arising out of his employment with the appellant, made application before the Workmen's Compensation Board for the adjustment of an asserted claim for compensation. The board held that the employer had not elected to operate under the Compensation Act, and dismissed the appellee's claim. On an appeal to the circuit court, it ruled that the employer either had elected to operate under the Workmen's Compensation Act or was estopped to deny that he had so elected, and since it was admitted that the appellee had elected to operate under the act, the award of the Compensation Board was reversed and that board was ordered to ascertain the extent of the injuries of appellee and the amount of compensation due him for the same. From this judgment of the circuit court, this appeal is prosecuted. *64
The facts are not in dispute. It appears that the appellant, having a subcontract on a road project, began getting rock out of a quarry for it and employed the appellee to work in this quarry. At the time appellant got his contract, he went to his insurance agent in Bardstown and asked him to secure for him a policy of insurance carrying his workmen's compensation liability on this job. This the insurance agent agreed to do. At the same time the insurance agent had the appellant fill out and sign the necessary papers to be filed with the Workmen's Compensation Board in order to effect the election of an employer to operate under the Workmen's Compensation Act. Section 4956, Kentucky Statutes. The appellant left the office under the impression that he had done all that he was required to do in order to be operating under our Compensation Act. The agent had great difficulty in procuring an insurance company to carry the risk, and, indeed, did not do so until after appellee suffered the injury for which he herein seeks compensation. While the agent was attempting to get a policy for appellant, he did not file with the Compensation Board appellant's notice of election to operate under the act, nor did the agent do so until after appellee had been hurt. Appellee had been working for appellant about 2 or 3 days when appellant's foreman brought a book around and asked appellee to sign it, which he did. The foreman told him at the time that if he did not sign he would not recover for injuries. The appellee testifies that when the foreman got him to sign this book, he was thus led to believe that he was insured. This book was the register in which employees by signing made their election to operate under the act. A day or so after the appellee had signed the register, he received the injuries which are the subject-matter of this litigation.
The lower court's judgment cannot be sustained on the ground that the appellant had elected to operate under the Compensation Act. Section 4956 of the Statutes plainly provides that the election on the part of the employer to operate under the Compensation Act "Shall be effected by the employer by filing with the board the following notice" (then follows the character of notice to be filed). Our Compensation Act is entirely voluntary in its character, and, before it is operative on an employer or employee, there must be an *65
election on the part of such employer or employee to operate under the act. The act prescribes the manner and method by which such election shall be had. See Bannon v. Watson,
The judgment of the lower court being in accord with these views, it is affirmed.