The opinion
SHACKELFORD MILLER, Jr., Circuit Judge
(dissenting).
As held by the majority opinion, this action would be barred by the statute of limitations if it was treated as an action for personal injuries. There is no valid claim under the Workmen’s Compensation Act because the parties did not affirmatively elect to subject themselves to the provisions of the Act. McNeese Construction Co. v. Harris, Ky., 273 S.W.2d 355 . In order for the appellant to recover, the action must be considered as one for damages resulting from breach of contract.
*456 I am not in agreement with my colleagues in their ruling that the appellee breached its contract obligation. That obligation was to “provide the protection and coverage of the benefits under Workmen’s Compensation and Occupational Disease Laws, whether compulsory or elective, existing in * * * ” Kentucky. In Kentucky, coverage under the statute was optional on the part of both the employer and employee. McCune v. Wm. B. Pell & Brother, 192 Ky. 22, 27 , 232 S.W. 43 . In my opinion, this contract provision eliminated any option on the part of the employer not to operate under the Act. But it could not and did not change in any way what the statute required to be done by both employer and employee in order to make this provision effective. It was still necessary for both the employer and the employee to formally elect to operate under the Act. Under Section 342.005(2), Kentucky Revised Statutes, as it then existed, coverage with respect to the disease of silicosis was obtained only by the “joint, voluntary application to the board, in writing” of the employer and the employee electing to operate under the provisions of the Act. The obligation resulting from the contract and the statute was accordingly a joint obligation. Unilateral action on the part of the employer would not have made coverage effective. McNeese Construction Co. v. Harris, supra, Ky., 273 S.W.2d 355 . Lack of coverage under the Aet resulted from the failure to take joint action, not the failure of the employer to take unilateral action. It is a settled principle of contract law that where no fixed time is provided for performance and the obligations of the parties are joint or concurrent, neither party is in default in failing to perform until requested so to do by the other party to the contract, accompanied by a tender of performance. Morris Shoe Co. v. Coleman, 187 Ky. 837, 841 , 221 S.W. 242 ; Morgan v. Patillo, 5 Cir., 297 F. 140, 143-144 ; In re Independent Distillers of Ky., D.C.W.D.Ky., 34 F.Supp. 708, 712 . Reliford did not elect to operate under the Act. Nor did he ever make any request of the appellee that the necessary joint application be made to the Board. In view of Reliford’s failure to make the necessary election and his failure to request the appellee to execute the joint application with him, I do not think that the failure of the parties to have the coverage in effect can properly be construed as a refusal on the part of the appellee to provide the coverage, or as a breach of its contract to provide such coverage. Nor can it be said as a matter of law that if the appel-lee had taken unilateral action, it would have resulted in Reliford likewise making the necessary election. As the Court pointed out in Greene v. Caldwell, 170 Ky. 571, 580 , 186 S.W. 648, 651 , the right of election or non-election is left with the employee. “What the employé will do when he comes to decide whether to accept or reject the act depends on the viewpoint from which he weighs for himself its benefits and disadvantages.”
If we assume that appellee breached its contract obligation, we are faced with a troublesome question of damages. Although Reliford lost his right of coverage under the Act, he retained his common law right of action against his employer, which he would have relinquished if he had accepted the provisions of the Act. His enforcement of this right could have resulted in a recovery of as much as or even more than the benefits provided by the Act, in which event he would have suffered no damage at all. Liability, if it existed, was expressly fixed and limited under the Act in contrast to the unlimited liability in a common law action for damages. Since Reliford failed to avail himself of his common law right of damages, it is pure speculation at the present time to attempt to determine what, if any, damages he may have suffered by appellee’s alleged breach of contract. Such damages can not be made the basis of a recovery. Western Union Telegraph Co. v. Hall, 124 U.S. 444 , 8 S.Ct. 577 , 31 L.Ed. 479 ; Boatright v. Steinite Radio Corporation, 10 Cir., 46 F.2d 385, 390-391 ; Holliday v. Spahr, 274 Ky. 556, 561 , 119 S.W.2d 656 . I *457 recognize the rule that in cases where the fact of damage is certain, the uncertainty of the amount does not prevent a recovery. But where the fact of damage is itself uncertain and speculative, as in the present case, there can be no recovery other than nominal damages. Compare: Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 , 66 S.Ct. 1187 , 90 L.Ed. 1515 .
I would affirm the judgment of the District Court.