Clingingsmith v. Jackson Dairy Co.
| Decision Date | 14 December 1926 |
| Docket Number | No. 37975.,37975. |
| Citation | 202 Iowa 773,211 N.W. 413 |
| Parties | CLINGINGSMITH v. JACKSON DAIRY CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marshall County; B. F. Cummings, Judge.
Proceedings for an award under the Workmen's Compensation Act. The board of arbitrators made an award from which an appeal was taken to the industrial commissioner, who affirmed the award as made by the board of arbitration. Subsequently, and after appeal to the district court, the industrial commissioner filed a supplemental decision modifying the method of computing said award. Both parties appealed to the district court, which struck the supplemental award of the industrial commissioner on motion and established the award as originally made by the arbitration committee. Both parties appeal to this court. Claimant having been designated as appellee by the parties, and the employer as appellant, they will be so treated by us. Modified and affirmed.Sampson & Dillon, of Des Moines, and Ray J. Mills, of Cedar Rapids, for appellants.
Ray P. Scott, of Marshalltown, for appellee.
The appellee, at the time of the matters involved in this case, was the wife of one O. I. Clingingsmith. Appellee was the mother of six children by a former marriage, three of whom were living at home with the appellee and her husband. The deceased employé was one of said children so living at home and was nearly 21 years of age. He was unmarried, and for five years had been earning his own wages. He was killed in a railroad accident while in the employ of appellant, on the 28th day of October, 1924.
[1] I. We first consider the question of the law applicable to the instant case. The Workmen's Compensation law was modified by the Code of 1924. Under the former statute (Code Supp. 2477m16 (3), the claimant would be conclusively presumed to be dependent upon the deceased minor. Code of 1924, § 1404, is as follows:
It therefore is important to determine which law was in force on October 28, 1924.
Article 3, § 26, of the Constitution of Iowa, provides:
“Laws passed at a special session, shall take effect ninety days after the adjournment of the General Assembly by which they were passed.”
The special session of the General Assembly which adopted the Code of 1924 adjourned on July 30, 1924. It is the contention of the appellee that, under the provisions of the Constitution, the Code of 1924 did not become effective until October 29, 1924, and therefore said Code was not in effect on October 28, 1924, the day that the employé was killed. The statutory method of computing time (section 63, par. 23, Code of 1924), is as follows:
“In computing time, the first day shall be excluded and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday.”
The rule of the statute seems to be one of general recognition among the courts of the country, both in statutory and constitutional construction.
The particular question now urged does not appear to have been heretofore before this court. Where a statute provides that a period of time designated shall be such as to leave ten days “between” the day of service and the first day of a term, we have held that the word “between” requires the exclusion of both the day of service and the first day of the term. Robinson v. Foster, 12 Iowa, 186. Where the statute specifies that “clear days” must elapse between a verdict and a judgment, we have held that both the day of the verdict and the day of the judgment must be excluded. State v. Marvin, 12 Iowa, 499. We have also held from a very early day that, where a statute provides that an act shall be done a certain number of days “before” the specified day, the first day is to be included and the latter day excluded. Dilts v. Zeigler (1848) 1 G. Greene, 164, 48 Am. Dec. 370;McLeland v. Marshall County, 199 Iowa, 1232, 201 N. W. 401, 203 N. W. 1. There is no good reason why the statutory rule should not be applied to the constitutional provision. We are disposed to so apply it, and, excluding July 30th, the day the Legislature adjourned, and including the last day, results in finding that the Code of 1924 went into effect on October 28, 1924, or, more accurately stating, it went into effect at midnight of October 27, 1924. The accident in question having occurred in the forenoon of October 28, 1924, comes under the provisions of the Code of 1924.
As bearing upon our conclusion, see Henderson v. Edwards, 191 Iowa, 871, 183 N. W. 583, 16 A. L. R. 1090;State v. Mounts, 36 W. Va. 179, 14 S. E. 407, 15 L. R. A. 243;McGinn v. State, 46 Neb. 427, 65 N. W. 46, 30 L. R. A. 450, 50 Am. St. Rep. 617;Leavenworth Coal Co. v. Barber, 47 Kan. 29, 27 P. 114;Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125, 18 Ky. Law Rep. 238. Very many other cases might be added to this list. Appellee cites Halbert v. San Saba Springs & Live Stock Association, 89 Tex. 230, 34 S. W. 639, 49 L. R. A. 193. The decision appears to be contrary to the great weight of authority throughout the country, and we are not disposed to accept it as a precedent.
[2][3] II. Upon hearing before the industrial commissioner, he made an award on September 10, 1925. Both parties served notice of appeal from said award; one of said notices being filed on September 10th, and the other on September 29th. Thereafter, to wit, on October 1, 1925, without notice to either party, the industrial commissioner filed a supplemental decision in which he modified the manner of computation as fixed by him in the original award. Thereafter he certified the entire record in the case. In the...
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