Bussey v. Bishop, (No. 6886.)

• Decision Date: 05 October 1929
• Docket Number: (No. 6886.)
• Parties: BUSSEY . v. BISHOP.
• Court: Georgia Supreme Court

169 Ga. 251

150 S.E. 78

BUSSEY .

v.BISHOP.

(No. 6886.)

Supreme Court of Georgia.

Oct. 5, 1929.

(Syllabus by the Court.)

Hill, J., and Beck, P. J., dissenting.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Proceeding under the Workmen's Compensation Act by J. C. Bussey, employee, claimant, opposed by F. A. Bishop, employer, in which Mrs. F. A. Bishop was substituted as party defendant. To review a judgment setting aside award in favor of claimant, claimant brings error. Affirmed.

Branch & Howard and Bond Almand, all of Atlanta, for plaintiff in error.

Tillou Von Nunes, Irma Von Nunes, and Paul S. Etheridge & Son, all of Atlanta, for defendant in error.

HINES, J. In November, 1923, J. C. Bussey filed with the Industrial Commission of Georgia a claim against the Empire Glass & Decoration Company, for compensation for the loss of an eye. An award in his favor was made by the commission. An appeal was taken by the defendant. The superior court affirmed the award of the commission; and in February, 1925, the judgment of that court was affirmed by the Court of Appeals. Empire Glass & Decoration Co. v. Bussey, 33 Ga. App. 464, 126 S. E. 912. It was then discovered that the charter of the Empire Glass & Decoration Company had expired in 1914. At the time of Bussey's employment, and at the time of the award, F. A. Bishop was the sole owner of the business conducted under the name of Empire Glass & Decoration Company. Bussey applied to the Industrial Commission to amend its award, so as to be one against Bishop individually, doing business under the trade-name of Empire Glass & Decoration Company. This application was denied. On September 2, 1925, Bussey filed an equitable petition, seeking to have the award of the commission so amended or reformed as to make it an award against P. A. Bishop, doing business under said trade-name. A decree was entered, amending the award as prayed. Bishop brought the case to this court, which reversed the judgment of the lower court. Bishop v. Bussey, 164 Ga. 642, 139 S. E. 212.

After this judgment was made the judgment of the lower court, Bussey in September, 1927, applied to the Industrial Commission for compensation for the loss of his eye, under section 25 of the Georgia Workmen's Compensation Act, approved August 17, 1920 (Acts 1920, p. 1S1), as amended by the Act of August 27, 1925 (Acts 1925, p. 284, § 2). In his answer Bishop alleged that this application was barred, because Bussey was seeking compensation for an accident which happened more than one year before the filing of his claim with the commission. The answer further set up that so much of section 25 of the Act of August 17, 1920, as amended by the Act of August 27, 1925, § 2, as provides "that if a claimant proceeds in good faith against a corporation, the charter of which had expired, but which was still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit shall not apply, ^w is retrospective and violative of paragraph 2 of section 3 of article 1 of the Constitution of this state, which provides that no retroactive law shall be passed. Pending said application Bishop died, and by agreement his wife and sole heir at law was made a party in his stead. On May 11, 1928, the commission made an award in favor of Bussey.

Mrs. Bishop appealed, and in the superior court judgment was rendered, setting aside the award and sustaining the appeal. The controlling questions for decision are whether the above provision of section 25 of the Act of August 17, 1920, as amended by the Act of August 27, 1925, % 2, is applicable to a case where the claim for compensation was barred before the passage of the latter act,, and whether, if so applied, it would be unconstitutional and void, because it violates paragraph 2 of section 3 of article 1 of the Constitution of this state, which provides that no retroactive law shall be passed. By section 25 of the Compensation Act, as originally passed, it was provided that "the right to compensation under this act shall be forever barred, unless a claim be filed with the Industrial Commission within one year after the accident, and, if death results from the accident, unless a claim therefor is filed with the commission within one year thereafter." Acts 1920, pp. 167, 181. This was the statute of limitation in force at the time this accident occurred. The Act of August 27, 1925 (Acts 1925, p. 284, § 2), added to the above statute this exception: "Except that if a claimant proceeds in good faith against a corporation, the charter of which had expired, but which was still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit shall not apply."

1. The first question for decision is whether section 2 of the Act of August 27, 1925, should be applied to a claim for compensation which became barred under the Act of August 17, 1920, and before the passage of the act of 1925. Retrospective statutes are forbidden by the first principles of justice. Mayor, etc., of Savannah v. Hartridge, 8 Ga. 23 (9). Laws prescribe only for the future, and generally have no retrospective operation. Civil Code 1910, § 6; Redd v. Hargroves, 40 Ga. 18, 24. The settled rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires such construction. Moore v. Gill, 43 Ga. 388, 391. A statute of limitation will not be so construed as to affect a cause of action already barred, if such construction can be reasonably avoided. People v. Supervisors, 10 Wend. (N. Y.) 363; Durritt v. Trammell, 11 Ark. 183; Pridgeon v. Great-house, 1 Idaho, 359; Wright v. Oakley, 5 Mete. (Mass.) 400; Loring v. Boston, 12 Gray (Mass.) 209; Kinsman v. Cambridge, 121 Mass. 558; Ivey v. Blum, 53 Ala. 172 (4); Tennant v. Hulet, 65 Ind. App. 24, 116 N. E. 748; Dyer v. Belfast, 88 Me. 140, 33 A. 790; 23 Am. & Eng. Enc. Law, 448; Richards v. Carpenter (C. C. A.) 261 F. 724; Denny v. Bean, 51 Or. 180, 93 P. 693, 94 P. 503; Whit-tier v. Farmington, 115 Minn. 182, 131 N. W. 1079; Hopkins v. Lincoln Trust Co., 233 N. Y. 213, 135 N. E. 267; Fullerton-Krueger L. Co. v. N. P. Ry. Co., 156 Minn. 20, 194 N. W. 9; Dennig v. Meckfessel, 303 Mo. 525, 261 S. W. 55; Woart v. Winnick, 3 N. H. 473, 14 Am. Dec. 384; 37 C. J. 697 (§ 14) e.

This principle is especially applicable where the limitation, when the cause of action accrued, was a part of the right of action itself. La Floridienne, J. Buttbenbach Co., Societe Anonyme v. S. A. L. Ry. Co., 59 Fla. 196, 52 So. 298. The filing of a claim for compensation under the act of 1920 was a condition precedent to the recovery of such compensation. Parmelee v. S., F. & W. By. Co., 78 Ga. 239, 2 S. E. 686. An essential element of a claim under the Workmen's Compensation Law is the filing thereof with the Industrial Commission within 12 months from the date of the accident. Chamlee Lumber Co. v. Crichton, 136 Ga. 391, 71 S. E. 673. So, unless a statute of limitation expressly or by necessary implication is made applicable to causes of action already barred when it is passed, it will not be held to apply thereto. The act of 1925 does not expressly or by clear implication apply to causes of action which had become barred at the time of its passage, and for this reason this statute should not be held to apply to the case under consideration.

2. If this construction of the act of 1925 is incorrect, then for other reasons the applicant for compensation cannot succeed. In the first place, the Legislature cannot revive a right of action that was barred by the statute of limitations in existence prior to the passage of the reviving act. In Calhoun v. Kellogg, 41 Ga. 231, this court held that the acts passed by the Legislature during the war, suspending the statute of limitations, which were confirmed by the Ordinance of 1S65 and the Constitution of 1868, were "valid in all cases, where the legal statutes in existence at the commencement of the struggle had not fully run in favor of the defendant, before the passage of the Ordinance of 1865; but they do not revive a right of action that was barred by the legal acts in existence prior to the passage of the Ordinance in 1865." The judges divided upon certain questions involved in the case, but this division did not relate to the proposition that the Legislature cannot revive a right of action that was barred by a legal statute of limitation at the time of the passage of the act seeking to revive a barred cause. On that point the judges seem to have been agreed.

The ruling in that case was followed in Goodroe v. Neal, 45 Ga. 109. These decisions of this court are in harmony with the general rule stated in Corpus Juris as follows: "In most jurisdictions the general rule is laid down, without exception or qualification, that the Legislature cannot remove a statutory bar to a cause of action that has already become complete. In a few jurisdictions, however, due mostly to the influence of the leading case of Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483, a distinction has been made between a statutory bar operating to invest persons with title to property and a bar which constitutes merely a defense to a personal demand, and it is accordingly held that in actions on contract, or in any class of actions in which a party does not become invested with title to property by the statutes of limitation, the Legislature may by repealing the statute, even after the right of action is barred, restore the remedy and divest the other party of the statutory bar." 12 C. J. 980 (§ 576), (3), and cases cited in note 19. The reason for the general rule has been stated thus:

"The current of decisions in other States treats as a vested right the privilege to plead the statute of limitation when it has run and

become a bar to a demand arising either...