Brooks v. Texas Emp. Ins. Ass'n

• Decision Date: 26 April 1962
• Docket Number: No. 13892,13892
• Citation: 358 S.W.2d 412
• Parties: Thresa Tyes BROOKS, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 412

358 S.W.2d 412

Thresa Tyes BROOKS, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.

No. 13892.

Court of Civil Appeals of Texas, Houston.

April 26, 1962.

Rehearing Denied May 31, 1962.

Barker Barker & Coltzer, Jerry, D. Barker, Galveston, Gripp, Will & Collins, Houston, for appellant.

Royston, Rayzor & Cook, Bryan F. Williams, Jr., Galveston, for appellee.

COLEMAN, Justice.

This is a suit for death benefits under the Texas Workmen's Compensation Act. After trial to a jury a judgment for the plaintiff was entered by the trial court. The plaintiff has appealed.

The question before this Court is the effect of a 1959 amendment to the Workmen's Compensation Act on then pending cases involving contracts, employments, and injuries occurring prior to the amendment.

John Brooks died on December 17, 1958, as a result of accidental injuries sustained in the course and scope of his employment. At the time of his employment and of his injury, and at the time of his death, Sections 1-3 of Article 8309 of Vernon's Annotated that in computing an employee's 'average weekly wages' for the purpose of determining the amount of compensation benefits due, the actual daily wages should be used if the employee, or, in the alternative, another employee 'of the same class,' worked in the employment in question 'substantially the whole of the year immediately preceding the injury.' If neither the employee injured nor an employee of the same class worked substantially the whole of the preceding year, then the act required that the average weekly wage be fixed in an amount 'just and fair to both parties.'

In 1959 these Sections of the Workmen's Compensation Act were amended so that the words 'substantially the whole of the year' were eliminated and the words 'for at least two hundred ten (210) days of the year' were substituted. This amendment was effective August 11, 1959 and the trial of this case began January 16, 1961. The amendment contained no savings clause.

'It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retrospectively, even when there is no constitutional impediment against it. Stated in another way, it is the rule that statutes will not be applied retrospectively unless it appears by fair implication from the language used that it was the intention of the Legislature to make it applicable to both past and future transactions. Rockwall County v. Kaufman County, 69 Tex. 172, 6 S.W. 431; Purser v. Pool, Tex.Civ.App., 145 S.W.2d 942, and many authorities there cited; Mississippi, C. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883; State v. Ward, 189 Okl. 532, 118 P.2d 216; Freeman v. Terrell, 115 Tex. 530, 284 S.W. 946.' State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707.

We find nothing in the 1959 amendment indicating a legislative intent that compensation to be paid workmen injured prior to the effective date of the amendment should be computed in the manner prescribed by the amendment.

Appellant contends that this general rule does not apply to procedural and remedial statutes, citing Bristow v. Nesbitt, 280 S.W.2d 957, Tex.Civ.App., no writ hist., where the court stated:

Venue statutes are procedural and rights thereunder are remedial as distinguished from substantive rights. Hadlich v. American Mail Line, D.C., 82 F.Supp. 562. A remedial statute, in the absence of a provision to the contrary, applies both to pending and future litigation. Bruton v. Texas Power & Light Co., Tex.Civ.App., 44 S.W.2d 462; Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315; 82 C.J.S. Statutes, Sec. 422, p. 998.'

In Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, writ. ref., n. r. e., we stated the general rule in the following language:

'The general rule is that in the absence of an express intention to the contrary, legislation dealing with a procedural matter applies to pending litigation to the extent that subsequent steps in the case are to be taken under the new rule. Past steps taken under a rule or statute will not be affected, but subsequent steps will be governed by the new rule provided a reasonable time is afforded in which to take them. A remedy must not be denied by entirely eliminating it or be so unduly limited as to amount to a denial of it, such as by changing the time within which it may be resorted to so that it cannot as a practical matter be asserted. Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315, affirmed Tex.Com.App., 124 Tex. 38, 72 S.W.2d 1113; Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905; Hunter v. Moore, Tex.Com.App., 112 Tex. 583, 62 S.W.2d 97; Red v. Bounds, Tex.Com.App., 122 Tex. 614, 63 S.W.2d 544.'

One question to be determined is whether or not the amendment under consideration is procedural or remedial.

'* * * the word 'procedure,' as a legal term, is so broad in its signification that it is seldom employed as a term of art, and it is not well understood, and is difficult to describe or define.

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'Procedure is the machinery for carrying on the suit, and it includes pleading, process, evidence, and practice, whether in the trial court or the appellate court, or in the processes by which causes are carried to appellate courts for review, or in laying the foundation for such review; in fact, procedure includes every step which may be taken from the beginning to the end of a case.' 72 C.J.S. Practice pp. 471, 473.

'Adjective law, also referred to as the 'law of remedy,' 'procedural law,' and 'remedical law,' is the law which pertains to practice and procedure, or the legal machinery by which the substantive law is made effective * * *.

'* * * Substantive law, as constitutionally, legislatively, and judicially recognized, includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally fix the type of remedy available in case of invasion of those rights. * * *' 52 C.J.S. Law p. 1026.

Under these general rules it is evident that laws regulating venue are procedural in nature, as was held in Bristow v. Nesbitt, supra. The statute eliminating service of notice of appeal from the decision of the Industrial Accident Board on the insurance carrier would be a procedural matter, as was held in New Amsterdam Casualty Company v. Patton, Tex.Civ.App., 22 S.W.2d 540, aff'd Tex.Com.App., 36 S.W.2d 1000. Changes in the requirements in appellate procedure are likewise procedural. Bardwell v. Anderson, supra; Hope Oil Corp. v. Humble Oil & Ref. Co., Tex.Civ.App., 43 S.W.2d 272; Devlin v. Heid Bros., Inc., 47 S.W.2d 383, Tex.Civ.App., writ dism.; Bruton v. Texas Power & Light Co., Tex.Civ.App., 44 S.W.2d 462; Walker v. Lyles, Tex.Civ.App., 45 S.W.2d 315, aff'd 124 Tex. 38, 72 S.W.2d 1113.

In Falls v. Key, 278 S.W. 893, Tex.Civ.App., writ dism., the court states:

'The presumption against the retropective construction of statutes is founded on the principle that they should not be given such a construction as will make them unconstitutional or unjust, and therefore as a general rule does not apply to statutes that relate merely to remedies and modes of procedure. The Legislature has full control over the mode, times, and manner of prosecuting suits; and whenever, upon consideration of an entire statute relating to these matters, it appears to have been the legislative intent to make it retroactive, it will be given this effect. 36 Cyc. p. 1213, Sec. 2. The retroactive effect has accordingly been given statutes providing a new mode of enforcing claims against the state or county, authorizing the issue of executions and attachments, authorizing the foreclosure of mortgages in certain cases, relating to the enforcement of liens, etc.'

Falls v. Key, supra, is also an example of a remedial statute. Black's Law Dictionary, 2nd Ed., p. 1457, gives as one definition of the term 'remedial statute' the following:

'Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or...