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

> Court of Appeals for the Sixth Circuit · November 10, 1958 · 260 F.2d 447

URL: https://www.frixlaw.com/law-library/cases/9446474

## Case

- **Full name:** Margie RELIFORD, Administratrix of the Estate of Henderson G. Reliford, Deceased, Appellant, v. EASTERN COAL CORPORATION, Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 10, 1958
- **Citations:** 260 F.2d 447; 42 L.R.R.M. (BNA) 2526; 1958 U.S. App. LEXIS 5104
- **Precedential status:** Published
- **Opinion:** On rehearing by Allen
- **Judges:** Allen, Miller, Mathes
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446474

## Opinion text

On Petition for Rehearing.
Before ALLEN, Chief Judge, MILLER, Circuit Judge, and MATHES, District Judge.
ALLEN, Chief Judge.
In its brief upon petition for rehearing appellee announces that it abandons the theory on which it tried the case below. It is the practically universal rule that this cannot be done. See: 3 Am.Jur. 35, Section 253, and 3 Am.Jur. 372, Section 830 (Appeal and Error), and many decisions of the Supreme Court of the United States and of the various states cited therein; Virginian Railway Company v. Mullens, 271 U.S. 220 , 46 S.Ct. 526 , 70 L.Ed. 915 .
The reason advanced for appellee’s drastic shift in viewpoint is that the Supreme Court of Kentucky in Dick v. International Harvester Company, 310 S.W.2d 514 , has changed the applicable law. It is said that under Vandenbark v. Owens-Illinois Glass Company, 311 U.S. 538 , 61 S.Ct. 347 , 85 L.Ed. 327 , we are compelled to review the case under the law as it now is.
A material factual difference between the Dick case and the instant case is that the employer herein expressly promised to post “at the mine” notice of compliance with its agreement to “provide the protection and coverage of the benefits under Workmen’s Compensation and Occupational Disease Laws, whether compulsory or elective * * Appellee concedes that it did not comply with this important term of the contract. As a result of this material breach by appellee, Reliford was denied the practical notice essential to the preservation of his rights.
As set out at length in the Dick case, supra, the lav/ of Kentucky up to the amendments of 1956 to K.R.S. 342.005 (1) and (2) required a special election by the employer in order to operate under the silicosis provisions of the Workmen’s Compensation Act. (Reliford had retired from active service in 1951 because of silicosis.) While the amendment of 1952, K.R.S. 342.395, 1953 edition, provided that an employee by his contract of hiring was deemed to have accepted all provisions of the Workmen’s Compensation Act and to be bound thereby unless he filed written notice with the employer to the contrary, this amendment specifically provided that the section was in force “In the event an employer elects to operate under this chapter.” Appellee violated its express contract made July 1, 1947, not only to provide the benefits of the Workmen’s Compensation Act, but to post notice at the mine. Although appellee finally on March 1, 1952, made an informal election by letter to the Board to comply with the silicosis provisions of the Act, while Reli-ford’s case was pending before its claim agent, appellee neither notified Reliford, Reliford’s union agent, nor appellee’s own claim agent, of the existence of that letter, and never during the period involved posted any notice at the mine for the information of the employees. Under the law then in force it is hard to conceive of action by the employer better calculated to deceive and do detriment to the employee in respect to providing “the protection and coverage of the benefits under Workmen’s Compensation and Occupational Disease Laws” for the employee. We think this action of appellee constituted an instance of the “detriment or deception” referred to in the Dick case, supra, 310 S.W.2d 518 . When informed by the executive secretary of the Workmen’s Compensation Board, in accordance with the then existing law that (presumably because of *458 lack of an election by appellee) it had no jurisdiction, Reliford naturally concluded to seek his alternative remedy. Having no notice that appellee had elected, Reliford was not required to file written notice of rejection.
The alternative remedy was to bring an action at common law. The fact that Reliford chose to sue in contract rather than in tort was immaterial. K.R.S. 342.415, still in effect, recognizes that an employee who does not elect to operate under the Act may file a suit at law. Appellee concedes that Reliford had this alternative remedy. Since Reliford had a choice between the remedy under the Workmen’s Compensation Act and under the common law, he was not compelled, either by the contract with appellee or under the law of Kentucky, to come within the operation of the statute. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648 . His action on the contract was filed prior to the amendment of August 1, 1956, K.R.S. 342.005(1) and (2), and was filed while the law still required, as pointed out at length in the Dick case, a special election to operate under the Act to be made by joint, voluntary application. Dick case, supra, 310 S.W.2d 515 .
That Reliford was compelled to exhaust the remedy under the Workmen’s Compensation Act before filing suit, when he had chosen the remedy of filing an action at law and had not chosen the remedy under the Act, seems to a majority of the court to assert a proposition unsound in principle and supported by no authority. We are cited to no case that holds that when a plaintiff has two alternative remedies he has to exhaust the remedy he does not choose to adopt before choosing to adopt the other.
As to the case presented herein, the Dick decision did not change the existing law. On the contrary, it declared that the law followed by Reliford was in existence up to and beyond the time that he filed his suit on the contract. It follows that Vandenmark v. Owens-Illinois Glass Company, supra, and the line of .cases represented by Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653 , 73 S.Ct. 906 , 97 L.Ed. 1325 , while they declare well-established rules of law, are not controlling here.
The majority adheres to its previous decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446474. Public record. Not legal advice.