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

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.

*456I am not in agreement with my colleagues in their ruling that…