Gateway Construction Company v. Wallbaum , 356 S.W.2d 247 ( 1962 )

MONTGOMERY, Judge.

Gateway Construction Company appeals from a judgment sustaining an award of the Workmen’s Compensation Board in favor of Edward Wallbaum. Gateway had a contract to alter and repair a dwelling in Louisville. It had a subcontract with John G. Straub to do the roofing work. On June 6, 1960, while working for Straub on the job, Wallbaum fell from a ladder and was injured.

The latter sought to recover benefits under the Act against Gateway. It is asserted in Wallbaum’s brief that the proceeding was instituted jointly against Gateway and Straub, but this is not shown by the record.

Gateway had accepted the provisions of the Workmen’s Compensation Act. Straub had two employees, one of whom was Wall-baum. Under KIRS 342.005(2), in effect on the date of the injury, the only way an employer having less than three employees and his employees could have come under the Act was by joint voluntary application in writing to the Board. No such application had been made by Straub and Wall-baum.

Further, the employer-employee relationship between Straub and Wallbaum arose from a contract for hire. There is no such contract or relationship shown between Wallbaum and Gateway. KRS 342.-395 provides that the election of the employer to operate under the Act carries with it “as a part of his contract of hiring” a corresponding acceptance by the employee. The absence of any contract for hire between Wallbaum and Gateway closes that avenue of relief under KRS 342.395. The claimant has the burden of showing coverage under the Act. Collier v. Wright, Ky., 340 S.W.2d 597.

Wallbaum, therefore, insists that he is a so-called “statutory employee” of Gateway, the principal contractor, under KRS 342.-060, referred to as a “contractor-under” statute. The sole question presented is whether an injured employee of a subcontractor can recover workmen’s compensation under KRS 342.060 against the principal contractor where the principal contractor had elected to be covered by the Workmen’s Compensation Act but where neither the subcontractor nor his injured employee had so elected.

The effect of KRS 342.060 of the Act is involved. KRS 342.060 follows:

“A principal contractor, intermediate or subcontractor shall be liable for compensation to any employe injured while in the employ of any one of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate or subcontractor who pays such compensation may recover the amount paid from any subordinate contractor through whom he has been rendered liable under this section. Every claim to compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employe’s rights to recover compensation under this chapter from the principal or intermediate contractor. The collection of full compensation from one employer shall bar recovery by the employe against any other. But he shall not collect from all a total compensation in excess of the amount for which his immediate employer is liable. This section shall apply only in cases where the injury occurred on, in or about the premises on which the principal contractor has undertaken to execute work or which are under his control otherwise or management.”

The question presented is one of law on which the employee is entitled to a liberal construction. KRS 342.004; Dick v. International Harvester Company, Ky., 310 S.W.2d 514. However, it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there. Arduini v. General Ice Cream Company, 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333; Doherty’s Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576. The humane spirit of the statute does not warrant its extension beyond its legitimate scope. 58 Am.Jur., Workmen’s Compensation, Section 27, page 597.

Statutory law has been held to be an expression of the intention of the Legislature. To interpret a statute, the common rule is to ascertain and determine the legislative intent. Hopkins v. Dickens, 188 Ky. 368, 222 S.W. 101. It should be pointed out, however, that legislative intent is at best a nebulous will-o’-the-wisp. Far better it is to be guided by the old adage, “Plain words are easiest understood.”

The best way in most cases to ascertain such intent or to determine the meaning of a statute is to look to the language used, hut no intention must be read into the statute not justified by the language. Bohannon v. City of Louisville, 193 Ky. 276, 235 S.W. 750. The primary rule is to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express. Lewis v. Creasey Corporation, 198 Ky. 409, 248 S.W. 1046. Resort must be had first to the words, which are decisive if they are clear. City of Covington v. Cincinnati C. & R. R. Co., 144 Ky. 646, 139 S.W. 854; Goodpaster v. United States Mortgage Bond Co., 174 Ky. 284, 192 S.W. 35; Western Kentucky Coal Company v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400; City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746. The words of the statute are to he given their usual, ordinary, and everyday meaning. Louisville Country Club, Inc. v. Gray, D.C., 178 F.Supp. 915; Thompson v. Bracken County, Ky., 294 S.W .2d 943.

The language of KRS 342.060 contains usual, ordinary, everyday words. It is plain and free of ambiguity. The entire statute indicates that a liability against the principal contractor and in favor of the subcontractor’s employee is created which is dependent on the determination of the amount of the claim awarded in a proceeding against the immediate employer. This proceeding is a condition precedent to liability on the part of the principal contractor.

The language of the statute expressly provides that “Every claim * * * shall in the first instance be presented to and instituted against the immediate employer * * The liability of the principal contractor is limited “to the same extent as the immediate employer.” The liability of the latter must be determined first. The total compensation that may be recovered by the employee is further limited to the amount of compensation for which the immediate employer has been held liable. A right of recovery is given the principal contractor against the immediate contractor in case the latter has failed to satisfy the award. All of the language used in the statute, when given its usual meaning, indicates a legislative intent to require a proceeding against the immediate contractor first and that no award is authorized against the principal contractor until and after the proceeding against the immediate contractor. Inasmuch as Wallbaum has never proceeded against Straub, his immediate employer, (in fact he could not do so validly) and has proceeded directly against Gateway, the principal contractor, he has done so erroneously. See Industrial Commission v. Everett, 180 Ohio St. 369, 140 N.E. 767; Keeling v. Schuman Brothers Lumber Company, 204 Okl. 277, 229 P.2d 193; Doherty’s Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576.

Wallbaum relies on Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, wherein it was assumed that the employee of the subcontractor had elected to accept the Workmen’s Compensation Act. The language of the Tennessee Act is dissimilar and the construction given it is questionable. Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691, cited as following the Tennessee case, was decided on a question of whether there was sufficient evidence to sustain the Board’s finding of fact. The latter portion of the opinion devoted to the “contractor-under” statute may be considered as dictum and not binding since a majority of that court did not agree with it. The reliance of Wallbaum on DeLonjay v. Hartford Accident & Indemnity Company, 225 Mo.App. 35, 35 S.W.2d 911, and Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, is not justified since the Missouri statute deals with primary and secondary liability in a manner not embraced in KRS 342.060.

Accordingly, it is felt that a liberal construction of the statute does not justify a construction in derogation of its plain language. Western & Southern Life Insurance Company v. Weber, 183 Ky. 32, 209 S.W. 716; Clark v. Riehl, 313 Ky. 142, 230 S.W.2d 626; Meyers v. Walter, Ky., 253 S.W.2d 595; Bedinger v. Graybill’s Ex’r and Trustee, Ky., 302 S.W.2d 594.

Judgment reversed.

STEWART, C. J., and MILLIKEN, J., dissent.