Margie Reliford, Administratrix of the Estate of Henderson G. Reliford, Deceased v. Eastern Coal Corporation

tucky Compensation Burke, F. Dale Jack and Act. In Dan Combs Pikeville, Ky., appellant. these benefits did not However, cover diseases. Peyton Jr., Ky. Pikeville, Hobson, J. Compensation 1944 the Workmen’s Act (Hobson Pikeville, Ky., Stephens, & Al provide was amended to that in silicosis Bluefield, Kemper, Va., Jr., W. on bert S. employers employees cases and could vol- brief), appellee. untarily subject themselves to the byAct MILLER, Before ALLEN and Circuit filing joint, voluntary application Judges, Judge. MATHES, and District Compensation Board, the Workmen’s 342.005(2). July 1, 1947, KRS On ALLEN, Judge. Circuit wage agreement of Eastern and un- appeal judgment This attacks a ions was amended to conform to the an District Court entered in upon action based change provision and statute July 5, 1941, contract executed obligating employers provide the bene- Workers, the United Mine hereinafter changed employees fits the Act to was UMW, and Eastern called defendant read as follows: Corporation, Coal called Eas- hereinafter Compensation “Workmen’s rights tern, which covered of all Occupational Diseases” employed by miners Eastern. Plain- decedent, Operator party tiff’s hereinafter called Reli- “Each who is a ford, Agreement provide worked pro- in Eastern’s coal mine at will Stone, Kentucky, July County, Pike from tection of the benefits 7, 1936, During Compensation until June under Workmen’s time, Occupational Lavra, entire the contract Disease whether Eastern, compulsory elective, existing between UMW and Reliford was or respective a member of that union UMW and was the states in which the bargaining agent. employees employed. filled He various are Refusal of occupations, any motorman, Operator carry mine such as out this direc- man, years boom and for a number tion shall be deemed violation of “shooting” Agreement. coal. On compli- June Reli- Notice of retired posted ford because was advised he ance with this section shall be several doctors contracted at the mine.” silicosis. The situation that resulted for em- July registered contract, they 1941, ployees The executed was that if under Operators between Association they The the Workmen’s Field, automatically The protected Williamson of which Eastern were as to acci- member, injuries was a and the local and disability interna- dental death. As general UMW, resulting tional unions covered the silicosis, death from how- problems ever, filing joint, field of labor voluntary ap- between and man- of agement industry. plication by in the coal While both prerequisite It is indispensable se- contended that give disability curing within KRS not notice of his the benefits the time absent limitations various In a silicosis 342.005. applicable The District or the statute. election employee either the 342.005(2) and the Court so held. KRS rules, 342.316(2), no KRS familiar Board had applica- part jurisdiction. are read into that the and become a fact respects voluntary However, contract. the claimant who in certain tion was left suffering an we think the misinter has been he was statute asserted that occupational preted free, question either to sue of notice. disease paragraph subject requires usual defenses notice to the cited common giv negligence, disability contributory or fellow- silicosis be death due to risk, employer” rule, assumption practicable or en “the servant soon as as Compen- employee knowledge proceed re after the under Workmen’s has quires “upon was In 1956 this section em

sation Act. that claim be made ployer” respects. years in material Some within last amended three from the injurious exposure in the Un these amendments are considered to silica dust. rehearing. petition upon given, right less such com notice is pensation for barred. silicosis forever party, adoption each In of this contract comply the amend- with if both elected Reliford, advantage within a short time after he a ed obtained substantial employ, by left Eastern’s arising was examined The from silicosis. as to claims employer physicians X-rayed three subject at four not be would hospitals. He large recovery. was told all doctors possible of a burden suffering liability. that he was from silicosis. relieved of further would be Prompt given notice of this 342.015(1). employee fact was The KRS himself, advantage Eastern Reliford who talked and less have of a swifter personally agent remedy given by with Eastern’s claim liti- technical than that upon although number of employer gation law, times. His claim he would common at supported by agent was possibility UMW’s re- smaller also have the who, stated, covery. the District “im- ad- a mutual There thus was portuned vantage the defendant in behalf of consideration the em- plaintiff.” During 1951, agreement ployer’s provide Eastern ar- the bene- ranged physical Compensation to have Reliford take a of Workmen’s fits doctor, employees. examination its with own who re- for all as to silicosis ported that Reliford did silico- not have covering silicosis ex- was hearing company sis. At herein July 1, prior no time ecuted At stated doctor under oath that Reliford’s oper- did elect March Eastern X-rays symptoms, as shown various nor did it ate under the amended statute evidence, introduced taken in any post it so elected. stages consistent with were the first letter date addressed a On that agent, the disease. Eastern’s after re- Compensation Board of Ken- ceiving a from number letters tucky in which it stated that tarily subjected itself to the it volun- agent, in a letter sent October UMW provisions Reliford’s claim refused behalf Possibly letter, KRS so of long delayed, 342.316. rely upon The letter not of Eastern. substantially complied timely point claim that the was not 342.390) (see KRS it did the statute but merely filed, declared that but comply contract. Notice of posted disabled because of silicosis. was employer’s letter was rejection letter of East- When served mine nor Reliford or agent year sent the one agent urging claim ern’s who was Reli- UMW asking hearing agent. provided before with Eastern’s ford’s claim Compensation Law, compulsory had al- Board tional Diseases whether ready expired. step indispensable 342.270. elective. KRS first fulfilling agreement its East- was that definitely point fixed At a governed ern itself should elect to be applica attorney made Reliford’s the silicosis of the Workmen’s Compensation tion to the Workmen’s Compensation statutory Act. A form Kentucky, Board of informed but was provided for the for that jurisdic the Board that it did not purpose. KRS 342.390. Eastern could filed an tion because had not Eastern promised not obtain the result that pro election to under the silicosis applied unless and until it vision of the Workmen’s provi- diseases Act. The action of the Workmen’s Com sions of the Workmen’s refusing pensation ju take Board in join If Reliford did not in the elec- is in accord with risdiction of the case Kentucky tion, Eastern would be from its released KRS 342.005 decisions under promise as to Reliford. But Eastern was (2). Appeals The Court of bound attempt under the contract to provision if either holds that perform positive obligation. not mani does that, his in with the fest election accordance District held in effect they ap terms of the are not since statute Reliford had not filed his election though plicable, being apprised to even both intended after dition, physical of his operate they covered. and believed were Eastern was released from the Harris, Ky., necessity making timely McNeese Construction Co. v. election. We employer 273 355. Both and em think S.W.2d this is erroneous. Under register. ployee had to McCune Wm. placed contract Eastern was under Bros., Ky. 22, positive obligation by B. Pell 232 43. a promise & S.W. to steps employees Reliford therefore took no further proceed several hundred to un- Compensation before the der the Workmen’s statute immediately July Board and this action was filed March way after 1947. The April 8, 1957, plaintiff proceed promptly 1956. On died of to to file an election Margie Reliford, wife, silicosis and his to under the Act. estate, plaintiff’s as administratrix of Moreover, already per- Reliford had in was substituted the action. obligations formed his essential under denied relief joined The District Court and the contract. He had the union complaint principal doing dismissed the two and in so had assented to the mani- One, plaintiff reasons. it held that and fold of the contract which obligation govern equal working were under an defendant would conditions, his in- voluntary joint applica- cluding might to into the enter pay even the rent that he writing required housing, obligation tion in under KRS 342.- help and an to that, plaintiff prevent since failed local strikes. application to make for benefits of the statute, Under the silicosis KRS 342.- statute, defendant was not bound its 005(2), required Reliford was not file Two, the court contract. also held that (if elect), his election he did first or Reliford’s was barred the one simultaneously with Eastern. The use year provision of the statute of limita- “joint, voluntary applica- the words applicable personal injury. tions 342.005(2) in tion” does not affect conclusion. obliga think that We ReHford’s equal this record was contemplate tion statute does si- Eastern, express Eastern. employer an that multaneous election and em- agreement apply ployee. intended to “joint,” written Neither the word employees, promised “united; hundreds defines combined,” Webster as “provide” protection precise prescribes that time at which coverage of the benefits or the union combination shall take place, Occupa- nor is the time elsewhere stated. The employer under Eastern’s and one-half required failure four form years July 1, 1947, ef- is to March election “This KRS 342.390 states steps day cover- take fective of......and ing industry, (here busi- contract was tantamount a refusal. insert name obligation payment of is an operation While election which the ness made).” money only upon contemplates elec- certain arises an cases This form demand, obligated per- merely party one when a is tion which shall cover acts, employer one form a act controversy certain act or failure to between equivalent As is often refusal. employee, held to a a number of controversies but Ky. 344, Conn, em- held in Hicks at and all between the ployees. page 348, 813: when S.W.2d is filed subjects But himself many ‘refuses,’ “The word like hardly have employees will individual language, is other words in our elas em- silicosis simultaneously signi tic and is somewhat varied simultaneously ployer’s election nor according fication context Thus, if East- each other. which it found and the nature subjected itself ern, promised, had as it subject-matter it refers. to which execu- a month of the to the Act within usually implies previous Refusal July Reli- contract of tion of the request demand or existence joined election in the ford could not have equivalent of circumstances But, thereto. sili- time for he did not Mackey United as stated until 1951. cosis States, ‘refuse’ F. means in the “Joint” statute deny necessarily imply does silico who contracted has deliberately previous demand. One a electing chooses, join to sis, if he shall general definitions of ‘refuse’ proceed the em to which is to New ‘withhold.’ Webster’s subjected already ployer himself. has Dictionary. International The word may years of act There between given judicial has been construction employee, and the act being synonym a We failure. by em filed election is but when the Commonwealth, held in 74 Thomas v. “joint.”

ployee, him as to it becomes 1062, Ky.Law Rep. 25 that S.W. any joint prevented elec Eastern that, if was not error to instruct it filing (1) by elec tion Reliford defendant ‘failed’ to the house leave prior promise right with its deceased, tion in accordance the latter had the (2) silicosis; contracting necessary to Reliford’s by use such force as was by post notifying Reliford, either using eject him instead of notice, ing when it or other give at the mine The failure to word ‘refused.’ file. It follows that neither bastardy did proceeding bond in a the statute contract nor under equivalent to refusal so. held Rudulph State, a to do perform. no failed to Since Reliford Ga.App. 353, 85 specified in the performance was time municipal 365. Where a board S.E. required to Eastern was against labor action a claim took no time. á reasonable election within county, file its was held to be a re years think was we and one-half Four Super it. Board fusal to allow fulfill time in which to County reasonable not a of Jefferson v. Less visors nature. promise of this ing, Miss. So. 697. Failure corporation’s report in file a re declares that The contract constitutes refusal a violation of this deemed “shall be fusal do Sherman v. Finance so. Cor Agreement.” that Eastern contends poration, 241 P. carry contract, Colo. out the refuse to did property failure of owner no refusal without de could be there that mand, lay sidewalks within the time neither nor the and that requiring prescribed an order performance. think We demanded union Eastern, ord shows after communica- their and with its construction tion of March held to amount to the Workmen’s served was been meaning Compensation Board, nothing said either a refusal within the city representative providing to Reliford or to his union the statute subjected to the effect done if the owner that Eastern had could have same City lay itself under the sidewalk. The record shows refused to dispute specific McClaugherty, pro- without that both Bluefield W.Va. visions the. contract breached 63 S.E. 363.” were When, March, Eastern. Adkins, Ky. See also Ennis v. action, Eastern decided to take it wrote 118 S.W.2d 175. an informal letter to the Workmen’s re- Under contract demand was Compensation Board to Reli- that effect. quired Reliford nor from neither from pending ford’s claim had then been in its the union in violation order establish officesince the summer of 1951. Eastern of the contract Eastern. copy sent a letter to the executive carrying Eastern was also default secretary Operators’ Association, of The important provision out the second agent mine, to its claim at the and to paragraph It failed to ful- involved. general manager at Eastern. This rec- post promise fill the mine” no- its “at ord shows that the matter was never compliance tice section of called to Reliford’s attention nor to not, as it had under contract. agent negotiating attention of union original agent. with Eastern’s claim This signi- Act, easy employees make it equivalent, purpose not the either in fy sign- acceptance their of the statute effect, proper posting of a notice at ing proper form of assent. subjecting mine that Eastern was itself contracting purpose posting silicosis of the law. employer’s the mine notice of the long delay, Eastern’s excuse for the made compliance, is, of its election to be by president, is that it “overlooked” subject only to the silicosis was not provision of the contract involved employees compli- to inform the legal justifica- here. This constitutes no ance, employees but also to alert the to tion. the action from individual min- The District held Reli Court notice, properly posted, ers. The ford was barred under the silicosis stat put employees upon inquiry have the rights as because he ute did make a claim be obligations. to their and This Compensation fore the Workmen’s Board cooperation would have secured the be- year having within one of his silicosis tween and called for years inju and within of three his last by KRS 342.316. notices and forms exposure. provisions rious But these arranged put by be out the application because, no here have as Compensation naturally Board would Appeals Kentucky of of Court held plant. have been made available at the Harris, McNeese Construction Co. v. su KRS 342.430. em pra “If either the 357] S.W.2d [273 posted If Eastern had notice as re- employee rejected ployer or the or quired might the contract this case not manifest his election accordance very history. have had a different As a statute, they with the terms of the were complete result of Eastern’s failure to ” * * * applicable. perform July 1, 1947, to March agent neither its question pre claim own nor the A more difficult is agent proceeded holding union to the Reliford’s case sented that the is application person the basis of the for barred because is action year injury Kentucky-one silicosis of and the Workmen’s al stat agent Injuries applies. person Act. Eastern’s said ute to the posting grow joined did not know the are certain out agreement. So far as this forms of have been held rec- Kentucky Appeals yet be limitation had Octo- fallen. On provision ber Eastern’s barred under this the date stat This when agent claim ute of 413.140. claim made limitations. KRS denied the actions, Eastern, general one-year statute is under all the bar rule that purpose inquiry had recover fallen. Reliford’s the real of which is injury person, counsel for an whether made to to the the Board was made governed jurisdiction upon tort, (1) Board because based contract or are without timely Eastern which limits elec- the statute limitations failed to make injury Act; (2) tion to “for an come because time which actions under the brought. person” may notify This Eastern had failed to Reliford applied its number election in doctrine has been in a him to act. for Kentucky Middles decisions. Howard v. We be think that the contract borough Ky. Hospital, 602, 47 S.W.2d employees tween Eastern and its involved Cooper, Tobacco Co. v. Scott personal more than a mere action for including Ky. 795, a sili 81 S.W.2d injuries. adoption It involved Mining cosis v. Walk Co. Columbus Hardy particular mine of a method er, Ky., 271 The same con S.W.2d 276. dealing labor with a situation vital to court clusion was reached management. swift The method of Inc., Markets, Super Finck v. Albers Cir., hearing and flexible made administrative construing 136 F.2d available in disease cases for dam statute of limitations clumsy planned supersede ages growing injuries. physical out of process of the common unsat law and the complaint, Unquestionably its isfactory continually delaying use of ne express reliance allegations, contract and gotiations between union steward record, that sustained company agent, such as those agreement, Eastern has violated Moreover, pur demonstrated herein. contract, Reliford an action on a but pose of the Workmen’s en disability money recovery prays for included, practicable, actments so far as arising from silicosis. elimination common-law actions growing personal injury between considerable difference We see of indus out presented operations. Am.Jur., here and those situation trial malprac- Compensation, 572, presented in cases of claimed Section 2. Reliford’s gist negligence only which were claim was not tice modest com pensation provided by actions as in the cases cited. the several the Act. It was performed surgical medical, hospital services might well have filed an election which Eastern would tract been re quired if he had re- under to afford Reliford after it com through notice, posting plied at joined. ceived with the Act and Reliford otherwise, payment that Eastern KRS 342.020. mine It was for the operate. recovery futile Reliford’s of so to the moderate elected allowance un lump inquiry Workmen’s der not in a sum after the certainly died, weekly payments desire to indicated his miner had beginning Board but in advantage payday the Workmen’s Com- on the first after seven take days procedures. pensation to Eastern’s Due after the disease dis 1, ability. 1952, March until elect and KRS 342.040. failure It was for the any right hearing at involved failure here to have a the case in a required specific post at the mine as nontechnical manner before a contract, specially purpose, mis- Reliford was Board chosen for under this remedy. by Eastern When which would control and make allowance led 1, 1952, attorneys’ seeking mailed its March Eastern fees. Reliford was subject election to itself to the as to himself the enforcement of the con letter solemnly of the Workmen’s tract entered into Eastern silicosis one-year Compensation Act the bar of for the benefit of several hundred men Reliford, The case also for turned the statute of mine which, although tract least four limitations not carried out for at it was the Kentucky, years. one-half statute long settled federal to be resorted to employer’s ad think We herein.2 In the absence of limi federal a breach mitted conduct amounted to by Congress, tations established the Su bargaining which collective preme Court of the United States has Reliford’s been made for repeatedly held that the state statute benefit, payments and that Chattanooga limitations controls. Foun have pensation Com under the accrued dry Pipe City Atlanta, Works & obliga employer’s Act if the 390, 65, U.S. 27 S.Ct. 51 L.Ed. performed provide mini tion had been Rawlings, Receiver, Ray, 96, 312 U.S. damages proxi provable mum measure 473, 605; Cope S.Ct. 85 L.Ed. resulting mately breach. There from the Anderson, 461, 1340, 331 U.S. 67 S.Ct. fore, 15-year limitations statute of L.Ed. 1602. applies. Tex before instant was tried Congress Since the embodied in tile Lin Union of America v. Workers 301(a) Manage Section of the Labor Alabama, coln Mills of 353 U.S. ment Relations noAct statute limita 972, decided S.Ct. 1 L.Ed.2d June tions, under the established federal rule previous Su was announced. A appropriate the any state statute would in preme decision, Association Court applied. event be The District Westinghouse Employees v. Salaried applying Court’s error not in Westinghouse Corporation, 348 Electric but, opinion, statute in our de 99 L.Ed. 75 S.Ct. given above, applying reasons the one- cided March had held that year covering injuries limitation jurisdiction of federal not have court person fifteen-year rather than the limi unpaid an claimed action for salaries applicable tation to written contracts. bargaining be due under a collective judgment of the District agreement. reversed the case is remanded for recognize Lincoln Mills We proceedings further in accordance with ease, supra, un- held action that an opinion. specific performance compel anof ion bargain- in a clause collective arbitration MILLER, Jr., SHACKELFORD Cir- ing agreement constitutes action Judge (dissenting). cuit rights and that the sub- enforce federal majority applied opinion, law to be under Section held As stantive Management 301(a) Rela- would be of the Labor action barred the statute of 185(a) if it U.S.C.A. limitations was treated as an tions Act action § If, personal injuries. is federal law. doctrine There is no valid Compensa Mills federal the Lincoln substan- parties the enforcement of tion Act because the firmatively tive law for collective did not af subject bargaining contracts, fashioned “from elect themselves to laws,” provisions policy our national labor the of the Act. McNeese Con the Harris, applied Ky., properly in Co. v. be the struction to 273 is S.W.2d appellant In order the the contract law of the 355. to instead re bar cover, state, would be the action must be conclusion considered as our damages resulting changed. 1169 one for from 71 Harv.L.Rev. breach [See (1958).] of contract. Kentucky Bridges Company, an amendment to & the F. H. McGraw strues

2. v. Ky., Dick Act and v. Inter enacted 302 S.W.2d subsequently Company, Ky., sections the involved national Harvester 310 any question 514, do herein. not involve S.W.2d The Dick of limitations. case also 456 any appellee my request agreement make of the with col ever I am in necessary joint application leagues appellee be the in their that the obligation. In made to Board. view of Reliford’s That the breached its contract necessary failure make and obligation “provide protection election the the was to request appellee his to exe- coverage failure to the Work and benefits under the joint him, application cute the I Occupational men’s and par- compulsory do not think Laws, or that the failure of the Disease elective, whether ” * * * coverage Kentucky. existing ties have the can effect properly on coverage be Kentucky, construed as refusal the statute under In part provide appellee of the the part em optional of both the on the was coverage, or as of its contract to employee. Wm. a breach ployer v. McCune provide coverage. Ky. 22, such Nor can Brother, 232 192 B. Pell & appel- said a matter if my opinion, contract 43. In S.W. action, lee had option taken unilateral any on the provision eliminated making have resulted in operate Reliford likewise employer part of the not to necessary the pointed As election. the Court could not and Act. But it Caldwell, out any way Greene

change re the statute what Ky. 571, 580, right 186 S.W. employer quired to be done both election non-election is left with the provision employee to make this in order employee. employé “What do necessary will for both It was still effective. when he comes to decide whether ac- employee employer to formal and the cept reject depends the act ly operate Under under the Act. elect to viewpoint weighs from which he 342.005(2), Revised Section disadvantages.” himself its coverage benefits existed, Statutes, as it then respect was ob disease of silicosis to the appellee If we assume that breached voluntary ap “joint, only tained obligation, its contract we are faced with writing” plication board, in of the to the damages. question a troublesome Al- electing and the though right Reliford lost his of cover- provisions age Act, under the he retained his com- resulting obligation con right against mon law em- of action accordingly a and the statute tract ployer, relinquished which he would have obligation. joint on the Unilateral action accepted if he had part would not have right Act. His enforcement of this could Con effective. McNeese made recovery have resulted in a of as much Ky., Harris, supra, Co. v. struction pro- as or even more than the benefits coverage under Lack of S.W.2d vided in which he would event from the failure to take resulted Aet joint damage have suffered no bility, Lia- at all. action, em failure existed, expressly if it fixed unilateral action. It is ployer to take and limited under the in contrast principle of law that a settled liability unlimited in common law per provided fixed is no time where damages. action for Since obligations par formance failed right avail himself of his common law par concurrent, joint or neither are ties ty damages, pure speculation it is failing perform default in present attempt at the deter- to do requested so other until what, any, damages may mine if contract, accompanied by party to alleged appellee’s suffered breach performance. Morris Shoe damages a tender can contract. Such not be made Ky. 837, 841, Coleman, recovery. of a Co. basis Western Union Morgan Patillo, Telegraph Hall, Co. v. S.W. Independ 143-144; 140, Boatright re 577, In 31 L.Ed. F. S.Ct. 297 D.C.W.D.Ky., Ky., Corporation, 34 Radio of Steinite 10 46 Distillers ent 390-391; Holliday 385, Spahr, elect 708, did not F.2d F.Supp. 712. Ky. 556, 561, did he 119 656. I S.W.2d the Act. Nor operate to As of this material breach a result where recognize in cases the rule that prac- appellee, certain, Reliford was the uncer denied damage the is of the fact preservation prevent a to tical essential the tainty amount does of the rights. of his of dam recovery. fact the where But speculative, age and is itself uncertain length case, As set out at Dick the re no be present there can in the supra, Kentucky up the of lav/ damages. covery nominal other than amendments of 1956 to 342.005 K.R.S. Pot Clemens Compare: v. Mt. Anderson (1) (2) required special and election 1187, 680, 688, tery Co., 66 S.Ct. 328 U.S. employer operate un- in order to 90 L.Ed. 1515. provisions der of the silicosis Work- judgment of I affirm (Reliford men’s Court. District retired from be- active service silicosis.) cause While the amend- Rehearing. Petition On 342.395, ment K.R.S. 1953 edi- Judge, ALLEN, Chief Before tion, provided employee by that an MATHES, MILLER, Judge, and Circuit hiring contract of deemed Judge. District accepted provisions all of the Workmen’s Compensation Act and bound there- Judge. ALLEN, Chief by unless filed written notice with upon petition re In its brief employer contrary, this amend- hearing appellee it aban announces that specifically provided ment that the sec- theory which it tried the case dons the on tion was in force “In the an em- event practically universal below. It is the ployer chap- elects to under this rule be done. See: that this cannot Appellee express ter.” violated its 253, and 3 Am.Jur. Am.Jur. Section July 1, 1947, only pro- tract made Error), (Appeal and and Section 830 vide the benefits Com- many Supreme decisions of the Court pensation Act, post but notice at the United various States and of the Although appellee finally mine. therein; Virginian Railway states cited March made an informal election Company Mullens, 220, 46 271 U.S. comply letter to the Board to with the S.Ct. L.Ed. silicosis Reli- while pending ford’s case was before appellee’s The reason advanced agent, appellee Reliford, neither notified viewpoint drastic shift is that Su agent, Reliford’s appellee’s union nor preme in Dick v. In agent, own claim that existence of Company, ternational Harvester 310 S. letter, during period and never in- changed applicable W.2d has posted any volved notice at the mine law. is said that under Vandenbark employees. the information of the Un- Company, v. Owens-Illinois Glass der the law then force is hard 61 S.Ct. 85 L.Ed. we conceive action bet- compelled are to review the case ter calculated and deceive do detri- law as now is. respect ment to the pro- viding protection coverage “the A material factual difference benefits under Compen- between the Dick case and the instant Occupational sation Disease Laws” express herein employee. for the We think ly promised post action “at the mine” notice appellee constituted an compliance agreement instance with its deception” “provide protection “detriment referred to in case, supra, Dick Compen benefits under Workmen’s S.W.2d 518. Occupational Laws, sation informed Disease When executive secre- * * compulsory tary whether elective the Workmen’s Appellee Board, comply concedes that it did not in accordance with the then ex- important isting (presumably with this term of contract. because of by appellee) Air, Inc., had Koppal, & 653, Western lack of election v. an naturally jurisdiction, while 73 S.Ct. no Reliford 97 L.Ed. remedy. they alternative rules cluded to seek his declare well-established law, Having appellee controlling had elect- are not no notice that here. ed, file writ- Reliford was not majority previous to its adheres rejection. ten notice of decision. remedy was to The alternative Jr., MILLER, SHACKELFORD Cir- bring law. common an action at Judge (dissenting). cuit in con to sue chose fact that Reliford orig- filing At the time immaterial. of the than was the tract rather in tort recognizes Kentucky effect, appeal, 342.415, inal briefs on this still in the K.R.S. Appeals to Court of the who does not elect had not decided that may case operate of Dick file a suit v. International Harvester under Act the Co., Appellee Reliford oral S.W.2d 514. At law. concedes that the time argument by remedy. Reli Since counsel before this Court had this alternative remedy ruling the of the Court in case was the that ford had a choice between upon petition Act under reconsideration under the Workmen’s rehearing published. not law, and position he was had not and under the been common Appellee’s original by compelled, contract taken in its the either urged Kentucky, argument upon and brief appellee law of us oral under the in operation was without stat consideration of the effect of the within to come Ky. Caldwell, which that case law of ute. v. Greene Kentucky respect in- on the to the issues His action 186 S.W. 648. materially volved in Au (2), prior case. It has amendment filed changed Kentucky 342.005(1) applicable gust 1, 1956, and law K.R.S. required, the ease. law still filed while and was length Dick pointed in out at Appellee’s present petition for rehear special election a ing frankly by states that reason voluntary ap by joint, made to be Appeals Court case, supra, 310 S.W.2d plication. Dick Co., Dick in v. International Harvester 515. supra, necessary change there ais in position compelled ex- he took on behalf of the That appellee argument remedy brief herein- haust suit, filing position referred to. above new in before His Compensation Act filing presented remedy present pe the case is in the chosen he had when rehearing. Although chosen tition the Dick at law an action major- case had some a remedy seems to consideration under the making proposition ruling, Court its earlier assert a ity court to doing in appellee’s change supported so did no principle bene unsound authority. position that fit case cited to no areWe argument support thereof, al- plaintiff has two which is when that holds urged up requires now us. This re he has to exhaust remedies ternative adopt present consideration of the case at the remedy choose to does he viewpoint giving from that time choosing adopt the other. full con before sideration of Dick v. Inter effect herein, presented toAs Co., supra. national Harvester Erie change the exist- decision Dick Tompkins, Railroad Co. v. 304 U.S. contrary, declared ing On law. 1188; Doggrell 58 S.Ct. L.Ed. Reliford was followed that Co., Box Southern 208 F.2d beyond up to and existence It fol- on the contract. suit filed Virginian Railway As held Owens-Illinois Co. Vandenmark lows Mullens, 271 U.S. 46 S.Ct. supra, line Company, and the Glass may plaintiff not, L.Ed. after represented Transcontinental .cases

459 obligates comply employer to bringing trying the which on the his case Compensation ory complaint, the Workmen’s thereafter stated in Occupational theory change State Disease of the Laws another on review Kentucky is liability, not in a matter itself as defendant which the law an election to under those court. in lower meet laws, making appel generally unnecessary em- it for the also is the rule that ployer ap may rely Board in an execute and file with for reversal lant not joint coverage urged by application grounds pellate for court on Wood, Helvering required, (2) the Act heretofore un- v. it the lower court. 551, der the 348-349, 84 344, Amendment 309 U.S. 60 S.Ct. However, 19, 1952, does Act L.Ed. a rule one 796. such June may employed apply who has been be at a defendant who the time of the acceptance provisions and seeks successful in the lower court employer judgment appeal le shall on to have deemed affirm accepted gal upon all the trial reasons relied rendering judgment unless he shall court favor. have filed written Helvering Gowran, contrary. As 302 stated in v. Sec- 342.395, 238, 154, 158, Kentucky tion 245, 82 L.Ed. U.S. 58 S.Ct. Revised Statutes. 224, judicial proceed “In the review This amendment was in on Oc- effect ings that, deci settled if the rule is 1952, 23, appellee tober at which time correct, af sion below is must be writing denied in Reliford’s claim for although firmed, relied court lower compensation silicosis, on account of tak- wrong wrong ground gave ing position that the evidence Riley reason.” also: E. Invest See J. show that he was disabled account 55, Commissioner, ment Co. v. 311 U.S. silicosis. The was in effect amendment 59, 95, 36; 61 85 S.Ct. L.Ed. Securities shortly at the time thereafter when Reli- Exchange Chenery & Commission v. attorney ford’s contacted the Workmen’s Corp., 80, 88, 454, 318 U.S. 63 87 S.Ct. filing Board about a claim 626; Dunham, L.Ed. v. 352 U.S. Jaffke compensation the Act. 280, 307, 77 1 S.Ct. 314. L.Ed.2d Secretary Executive of the Board ad- applied by has rule been heretofore attorney vised Reliford’s that because Novelty v. Monarch Court. Mills Co. appellee application had not made Mfg. Co., Cir., 28, Tool & 6 49 F.2d cer disease the tiorari denied 284 52 U.S. S.Ct. jurisdiction. Board 561; Eagle lacked L.Ed. American Under 76 Fire Ins. Cir., Gayle, 116, 117, v. in Dick v. Co. 6 108 F.2d International Harvester Co., supra, certiorari denied 309 60 S.Ct. and the Amendment of June 1029; L.Ed. Paine & Williams this construction of the law Co., Cir., v. Baldwin Co. Rubber 113 was not correct and the Board did have 840, 844; F.2d Cold Metal Process Co. jurisdiction of the claim. We are re- Corp., Cir., McLouth v. Steel 126 F.2d quired to review the accordance present appel In case the with the as it now is. Vandenbark lee the defendant trial court Co., Owens-Illinois Glass 311 U.S. seeking judgment is affirm the 327; Doggrell 61 S.Ct. L.Ed. legal grounds court on that available to Co., supra, Box Cir., Southern 208 F.2d although record, on the him different States Killian, United upon by those relied the District 246 F.2d 82. The time limitation for Judge. opinion I am filing was a claim time three to do so. entitled although years, it was shortened to one year 342.185, in 1956. Sections 342.316, Dick v. International I construe Harvester holding According- Revised Statutes. ., supra, (1) Co appellee’s ly, no breach there was of a collective execution bargaining obligation provide coverage. with the union tract compensation obtain Co., supra, The failure to ternational March, Harvester the Act was post because Reliford no- 1958. The a failure press accepted his claim. who, tice did not not- affect Reliford Secretary withstanding the statement of the post Executive a the failure to such upon notice, of the were, Board. Reliance this state- knew what the facts name- chargeable appellee. ly, ment is attorney to the that at the time his claim No for Workmen’s tacted the Board in Novem- October ber, 1952, appellee benefits was filed with This the Board. executed a con- press obligating failure to claim his is not excused tract with the union provide protection occupational the fact that at did not the Myers dis- appear ease, applica- worthwhile. Bethlehem v. but had not filed a formal Shipbuilding Corp., 41, 50-52, nothing 303 U.S. tion for it. There addi- was 9, give and cases appellee cited in notes 11 on tional could notice page 51, 464, pages 463, post compli- S.Ct. on of. Failure a notice of Large, 82 L.Ed. 638. See: v. Sunal ance at the mine was not the cause 332 1982; L.Ed. U.S. 67 S.Ct. Reliford’s failure to obtain an award States, compensation Ackermann v. United 340 of from the Board. 193, 197-198, compensation 95 L.Ed. S.Ct. cause of the loss of was appellee’s appli- 207. Counsel for in Dick v. claimant failure to make formal Co., supra, coverage, was International Harvester cation for which Reliford knew but, making problem, about, confronted with a similar un- notice that fact nevertheless, pressed claim, necessary, his unsuc- and Reliford’s reliance cessfully Board, thought before the with ulti- but what was the law of Ken- be Ap- tucky time, mate success peals. before at the later which reliance proved justified. be real So the same, question in the case remains the foregoing If view of the case is post not the failure to alleged but the a notice correct, Reliford have did not available coverage. provide failure to press- himto remedies alternate ing filing his claim before the Board or aspect There is another of this case an action at law either breach of con- requires consideration. The col- jurisdic- If or tort. the Board had tract bargaining lective contained contract claim, remedy tion exclusive provisions for the settlement of local and 342.015, before board. Section disputes operators district between the Kentucky Revised Statutes. miners, starting and the with confer- aggrieved party between ences appellee’s I not think that do failure management, the mine and if not there post compliance the mine notice through settled, to be carried suc- agreement provide protec with its higher cessive levels. This is a contract tion for disease constitutes obligation. It excludes alternative reme- legal present a basis action. Con Appellee’s answer sets dies. these out light sidered the law was what alleges provisions and failure on agreement made, time the at the part comply of Reliford to with this compliance referred to notice obligation resorting before expected application by ap formal appears action. Such failure court pellee Board under the legal bar to the maintenance constitute provisions of Since action. Transcontinental & insofar under the as Reliford’s Air, Inc., Koppal, 345 U.S. Western concerned, opera results 1325; 73 S.Ct. 97 L.Ed. law, March, 1958, effective in tion Co., Ky. Tharp Louisville & R. N. virtue Dick v. Inter 210 S.W.2d Barker v. Co., supra, Harvester national rather Co., Pac. Southern F.2d 918. application contemplat formal than opinion petition agreement, compli I am the that the notice of ed rehearing granted legally posted should been could ance affirmed, judgment District Court the decision Dick In- after until

Case Details

Case Name: Margie Reliford, Administratrix of the Estate of Henderson G. Reliford, Deceased v. Eastern Coal Corporation

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 10, 1958

Citation: 260 F.2d 447

Docket Number: 13284_1

Court Abbreviation: 6th Cir.