General Refractories Co. v. Henderson

• Decision Date: 16 June 1950
• Citation: 232 S.W.2d 846,313 Ky. 613
• Parties: GENERAL REFRACTORIES CO., Inc. v. HENDERSON et al.
• Court: United States State Supreme Court — District of Kentucky

Page 846

232 S.W.2d 846

313 Ky. 613

GENERAL REFRACTORIES CO., Inc. v. HENDERSON et al.

Court of Appeals of Kentucky.

June 16, 1950.

Rehearing Denied Oct. 24, 1950.

James M. Graves, Louisville, Thomas D. Theobald, Grayson, for appellant.

Davis M. Howerton, Ashland, Leonard C. Fielder, Ashland, for appellees.

CLAY, Commissioner.

This is an appeal from a judgment upholding an award of the Workmen's Compensation Board, allowing appellee disability benefits for silicosis allegedly contracted while in the employ of appellant. A question of law is determinative of the controversy.

The application was filed in 1945. Under the law then in effect a Medical Committee of physicians, provided for in KRS 342.315 and 342.316, as amended in 1946, heard the evidence and filed its report in 1947. The finding of this Medical Committee was that appellee did not have silicosis. Exceptions to this report were duly filed and no award was made by the Board prior to March 15, 1948.

On that date amendments to Sections 342.315 and 342.316 became effective. These amendments absolished the Medical Committee and made applicable the normal procedure for determining disability as in other accidental injury cases under the Act. Thereafter the Board made an independent finding that appellee had silicosis and entered the award.

Amended Section 342.316 provided in part as follows: '* * * the provisions of this section, dealing with procedure in such cases, shall apply to all silicosis cases pending before the Workmen's Compensation Board in which no final award has been made by the Workmen's Compensation Board at the time the provisions of this section become effective (March 15, 1948).'

Appellant contends: (1) the 1948 amendment should not be construed as applicable to the present case; (2) if applicable, it is unconstitutional as impairing the obligation of a contract; and (3) if applicable, it deprives appellant of a material defense which is a vested property right.

Appellant's first contention is wholly without merit. The statute could scarcely be more specific in providing that pending cases before the Board in which no final award had been made as of March 15, 1948 should be governed by the changed procedure. That is exactly this case. We cannot accept appellant's argument that the use of the word 'shall' in the quoted provision shows that it is to operate prospectively only, because under such construction the provision would have no meaning whatsoever. It plainly referred to cases then pending.

Appellant's second contention is based on the theory that the relationship between the parties is contractual; that the provisions of the Act, effective as of the time of the disability, were a part of the contract; and that the change of remedial procedure impairs its rights therein.

It must be conceded that a contractual relationship existed between appellant and appellee. Thomas et al. v. Crummies Creek Coal Co., 297 Ky. 210, 179 S.W.2d 882. It is the universally accepted rule, however, that a prescribed remedy for the enforcement of rights may be changed or modified by the legislature without impairing the obligation of existing contracts. 11 Am. Jur., Constitutional Law, Section 382; 12 Am. Jur., Constitutional Law, Section 433, Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775, 153 A.L.R. 1199; U. S. v. Resch, D.C.W.D. Ky., 85 F.Supp. 389.

As stated in Richmond Mortgage & Loan Corporation v. Wachovia Bank & Trust Co., 300 U.S. 124, 128, 57 S.Ct. 338, 339, 81 L.Ed. 552, 108 A.L.R. 886: 'The Legislature may modify, limit, or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right. The particular remedy existing at the date of the contract may be altogether abrogated if another equally effective for the enforcement of the obligation remains or is substituted for the one taken away.'

An excellent statement of the rule quoted from Cooley's Constitutional Limitations, 4 Ed., page 350, appears in the case of Bagby v. Champ, & C., 83 Ky. 13, at page 17: 'Whatever belongs merely to the remedy, may be altered according to the will of the State, provided the alteration does not impair the obligation...