The opinion
SHACKELFORD MILLER, Jr., Circuit Judge
(dissenting).
At the time of the filing of the original briefs on this appeal, the Kentucky Court of Appeals had not decided the case of Dick v. International Harvester Co., 310 S.W.2d 514 . At the time of oral argument by counsel before this Court the ruling of the Court in that case was under reconsideration upon petition for rehearing and had not been published. Appellee’s position taken in its original brief and urged upon us in oral argument was without consideration of the effect which that case had upon the law of Kentucky with respect to the issues involved in this case. It has materially changed the Kentucky law applicable to the ease.
Appellee’s present petition for rehearing frankly states that by reason of the ruling of the Kentucky Court of Appeals in Dick v. International Harvester Co., supra, there is a necessary change in the position which he took on behalf of the appellee by brief and argument herein-above referred to. His new position in the case is presented in the present petition for rehearing. Although the Dick case had some consideration by this Court in making its earlier ruling, the Court in doing so did not have the benefit of appellee’s change of position and argument in support thereof, which is now urged up us. This requires a reconsideration of the case at the present time from that viewpoint giving full consideration to the effect of Dick v. International Harvester Co., supra. Erie Railroad Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 ; Doggrell v. Southern Box Co., 6 Cir., 208 F.2d 310 .
As held in Virginian Railway Co. v. Mullens, 271 U.S. 220 , 46 S.Ct. 526 , 70 L.Ed. 915 , a plaintiff may not, after *459 bringing and trying his case on the theory stated in the complaint, thereafter on review change to another theory of liability, which the defendant was not required to meet in the lower court. It is also the rule that generally an appellant may not rely for reversal in an appellate court on grounds not urged by it in the lower court. Helvering v. Wood, 309 U.S. 344, 348-349 , 60 S.Ct. 551 , 84 L.Ed. 796 . However, such a rule does not apply to a defendant who has been successful in the lower court and seeks to affirm the judgment on appeal for legal reasons not relied upon by the trial court in rendering judgment in his favor. As stated in Helvering v. Gowran, 302 U.S. 238, 245 , 58 S.Ct. 154, 158 , 82 L.Ed. 224 , “In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.” See also: J. E. Riley Investment Co. v. Commissioner, 311 U.S. 55, 59 , 61 S.Ct. 95 , 85 L.Ed. 36 ; Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 88 , 63 S.Ct. 454 , 87 L.Ed. 626 ; Jaffke v. Dunham, 352 U.S. 280 , 77 S.Ct. 307 , 1 L.Ed.2d 314 . The rule has been heretofore applied by this Court. Mills Novelty Co. v. Monarch Tool & Mfg. Co., 6 Cir., 49 F.2d 28 , certiorari denied 284 U.S. 662 , 52 S.Ct. 37 , 76 L.Ed. 561 ; American Eagle Fire Ins. Co. v. Gayle, 6 Cir., 108 F.2d 116, 117 , certiorari denied 309 U.S. 686 , 60 S.Ct. 809 , 84 L.Ed. 1029 ; Paine & Williams Co. v. Baldwin Rubber Co., 6 Cir., 113 F.2d 840, 844 ; Cold Metal Process Co. v. McLouth Steel Corp., 6 Cir., 126 F.2d 185, 189 . In the present case the appellee was the defendant in the trial court and is seeking to affirm the judgment of that court on legal grounds available to him on the record, although different from those relied upon by the District Judge. I am of the opinion that it is entitled to do so.
I construe Dick v. International Harvester Co., supra, as holding (1) the execution by the employer of a collective bargaining contract with the union which obligates the employer to comply with the Workmen’s Compensation and Occupational Disease Laws of the State of Kentucky is in itself as a matter of law an election to operate under those laws, making it unnecessary for the employer to execute and file with the Board the joint application for coverage under the Act heretofore required, and (2) under the Amendment to the Workmen’s Compensation Act of June 19, 1952, one who may be employed at the time of the acceptance of the provisions of the Act by the employer shall be deemed to have accepted all the provisions of the Act, unless he shall have filed written notice with the employer to the contrary. Section 342.395, Kentucky Revised Statutes.
This amendment was in effect on October 23, 1952, at which time appellee denied in writing Reliford’s claim for compensation on account of silicosis, taking the position that the evidence did not show that he was disabled on account of silicosis. The amendment was in effect at the time shortly thereafter when Reli-ford’s attorney contacted the Workmen’s Compensation Board about filing a claim for compensation under the Act. The Executive Secretary of the Board advised Reliford’s attorney that because appellee had not made application for coverage for occupational disease the Board lacked jurisdiction. Under the ruling in Dick v. International Harvester Co., supra, and the Amendment of June 19, 1952, this construction of the law was not correct and the Board did have jurisdiction of the claim. We are required to review the case in accordance with the law as it now is. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 , 61 S.Ct. 347 , 85 L.Ed. 327 ; Doggrell v. Southern Box Co., supra, 6 Cir., 208 F.2d 310 ; United States v. Killian, 7 Cir., 246 F.2d 77, 82 . The time limitation for filing a claim was at that time three years, although it was shortened to one year in 1956. Sections 342.185, 342.316, Kentucky Revised Statutes. Accordingly, there was no breach of appellee’s contract obligation to provide this coverage.
*460 The failure to obtain compensation under the Act was because Reliford did not press his claim. Reliford accepted the statement of the Executive Secretary of the Board. Reliance upon this statement is not chargeable to the appellee. No claim for Workmen’s Compensation benefits was filed with the Board. This failure to press his claim is not excused by the fact that at the time it did not appear worthwhile. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-52 , and cases cited in notes 9, 10 and 11 on page 51, 58 S.Ct. 459 , on pages 463, 464, 82 L.Ed. 638 . See: Sunal v. Large, 332 U.S. 174, 181 , 67 S.Ct. 1588 , 91 L.Ed. 1982 ; Ackermann v. United States, 340 U.S. 193, 197-198 , 71 S.Ct. 209 , 95 L.Ed. 207 . Counsel for claimant in Dick v. International Harvester Co., supra, was confronted with a similar problem, but, nevertheless, pressed his claim, unsuccessfully before the Board, but with ultimate success before the Court of Appeals.
If the foregoing view of the case is correct, Reliford did not have available to him the alternate remedies of pressing his claim before the Board or filing an action at law either for breach of contract or tort. If the Board had jurisdiction of the claim, his exclusive remedy was before the board. Section 342.015, Kentucky Revised Statutes.
I do not think that appellee’s failure to post at the mine notice of compliance with its agreement to provide protection for occupational disease constitutes a legal basis for the present action. Considered in the light of what the law was at the time the agreement was made, the notice of compliance referred to notice of the expected formal application by appellee to the Board to operate under the provisions of the Act. Since coverage under the Act, insofar as Reliford’s claim is concerned, results from operation of law, effective in March, 1958, by virtue of the ruling in Dick v. International Harvester Co., supra, rather than by a formal application contemplated by the agreement, a notice of compliance could not have been legally posted until after the decision in Dick v. International Harvester Co., supra, in March, 1958. The failure to post a notice did not affect Reliford who, notwithstanding the failure to post such a notice, knew what the facts were, namely, that at the time his attorney contacted the Board in October or November, 1952, appellee had executed a contract with the union obligating it to provide protection for occupational disease, but had not filed a formal application for it. There was nothing additional that appellee could give notice of. Failure to post a notice of compliance at the mine was not the cause of Reliford’s failure to obtain an award of compensation from the Board. The cause of the loss of compensation was appellee’s failure to make formal application for coverage, which Reliford knew about, making notice of that fact unnecessary, and Reliford’s reliance upon what was thought to be the law of Kentucky at the time, which reliance later proved to be not justified. So the real question in the case remains the same, not the failure to post a notice but the alleged failure to provide the coverage.
There is another aspect of this case which requires consideration. The collective bargaining contract contained provisions for the settlement of local and district disputes between the operators and the miners, starting with conferences between the aggrieved party and the mine management, and if not there settled, to be carried on through successive higher levels. This is a contract obligation. It excludes alternative remedies. Appellee’s answer sets out these provisions and alleges the failure on the part of Reliford to comply with this contract obligation before resorting to court action. Such failure appears to constitute a legal bar to the maintenance of this action. Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 662 , 73 S.Ct. 906 , 97 L.Ed. 1325 ; Tharp v. Louisville & N. R. Co., 307 Ky. 322, 325 , 210 S.W.2d 954 ; Barker v. Southern Pac. Co., 9 Cir., 214 F.2d 918 .
I am of the opinion that the petition for rehearing should be granted and the judgment of the District Court affirmed,