Brembry v. Armour & Co.
| Citation | 95 N.W.2d 449,250 Iowa 630 |
| Decision Date | 10 March 1959 |
| Docket Number | No. 49692,49692 |
| Parties | Willie BREMBRY, Claimant-Appellee, v. ARMOUR & COMPANY, Employer-Appellant. |
| Court | United States State Supreme Court of Iowa |
Stewart & Hatfield, Sioux City, for appellant.
A. M. Seff and John T. O'Brien, Sioux City, for appellee.
Claimant was injured, in the course of his employment by Armour & Company, on September 8, 1955. On September 6, 1957, claimant's attorneys mailed an application for arbitration to the Industrial Commissioner at the Workmen's Compensation Office in Des Moines. This was Friday and since the office was closed on Saturday and September 8th was Sunday, the application was not marked filed until September 9, 1957. Appellant claims the case is barred by the two-year Statute of Limitation appearing in Section 85.26, 1954 Iowa Code, I.C.A. Appellee contends the case is subject to the provisions of Section 4.1(23) 1954 Iowa Code, I.C.A., excluding Sunday if it is the last day in the limitation period. The trial court sustained claimant's position and the employer has appealed.
There is but one question in the case: does the fact that the last day of the two-year limitation falls on Sunday enlarge Workmen's Compensation limitation statute to include Monday?
Section 85.26 is as follows: 'No original proceedings for compensation shall be maintained in any case unless such proceedings shall be commenced within two years from the date of the injury causing such death or disability for which compensation is claimed.'
Section 4.1(23) provides: (Emphasis ours)
I. Appellant cites six cases in support of its contention. None of the cases pertain directly to the question as to whether or not Sunday is to be included or excluded. The argument of appellant is that Section 85.26 is a statute of special limitation and since Section 4.1(23) is general in its nature it does not apply in this case; that a special statute takes precedence over a general statute. We do not agree with this contention as to the case at bar. The answer is to arrive at the intention of the legislature, taking all statutes into consideration. We find no provision in the Workmen's Compensation Act, Chapter 85, that Section 4.1(23) shall not be applicable to Section 85.26. We find no provision in Section 4.1(23) making any exceptions as to any statute of any nature. We hold Section 4.1(23) is effective as to Section 85.26.
II. We have never heretofore directly considered the question in connection with the Workmen's Compensation Act. However, we have given indirect consideration to the effect of the exclusion of Sunday in two cases, one of which was a Workmen's Compensation case. German Savings Bank v. Cady, 114 Iowa 228, 86 N.W. 277; Barlow v. Midwest Roofing Company, Inc., Iowa, 92 N.W.2d 406.
The question had incidental consideration in German Savings Bank v. Cady, supra. In that case it was a question as to whether or not if the last day fell on Memorial Day the motion could be filed on the next day. We held it could not because there is no legislative basis for enlargement of the period of limitation in case of a holiday. We contrasted this situation with Sunday in the following statement: 'Where the last day of a period of time within which an act is required to be done falls on Sunday, 'the time prescribed shall be extended so as to include the whole of the following Monday' * * *.' [114 Iowa 228, 86 N.W. 278.]
The question in Barlow v. Midwest Roofing Company, Inc., supra, was whether or not because the Workmen's Compensation office was closed on Saturday the time of filing was extended until Monday. We held it was not because there is no statutory provision for the exclusion of any day except Sunday. We stated : 'We must conclude that the legislature expressly provided in section 4.1 for an extension of time when and only when the last day of a filing period falls on Sunday * * *.' The clear implication is that the Sunday exclusion provision is applicable to Workmen's Compensation Chapter.
III. Since we have not passed directly on the question with reference to the Workmen's Compensation Act, we should give some consideration to the weight of authority in other jurisdictions. The prevailing view is that where the last day of a limitation period falls on Sunday, the following Monday should be included. 34 Am.Jur., Limitation of Actions, Section 252; Elmore v. Fanning, 85 Kan. 501, 117 P. 1019, 38 L.R.A.,N.S., 685; Potter v. Brady Transfer & Storage Co., 21 N.J. Super 175, 91 A.2d 111; Poetz v. Mix, 7 N.J. 436, 81 A.2d 741; Dobson v. Wilson & Co., 152 Kan. 820, 107 P.2d 676, 677.
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...1019, 38 L.R.A., N.S., 685; Rochester v. Tulp, 54 Wash.2d 71, 337 P.2d 1062; Poetz v. Mix, 7 N.J. 436, 81 A.2d 741; Brembry v. Armour & Company, 250 Iowa 630, 95 N.W.2d 449; Wooten v. State Compensation Commissioner, 142 W. Va. 501, 95 S.E.2d 643; Smith v. Pasqualetto (U.S.C.A. 1st), 246 F.......
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