Hibler v. Globe Am. Corp.

• Decision Date: 13 January 1958
• Docket Number: No. 19034,19034
• Citation: 128 Ind.App. 156,147 N.E.2d 19
• Parties: Charles HIBLER, Appellant, v. GLOBE AMERICAN CORPORATION, Appellee.
• Court: Indiana Appellate Court

Page 19

147 N.E.2d 19

128 Ind.App. 156

Charles HIBLER, Appellant, v. GLOBE AMERICAN CORPORATION, Appellee.

No. 19034.

Appellate Court of Indiana, In Banc.

Jan. 13, 1958.

Floyd F. Cook, Kokomo (Cook, Cook, Bayliff & Mahoney, Kokomo, of counsel), for appellant.

James V. Donadio, George B. Gavit, Indianapolis (Ross, McCord, Ice & Miller, Indianapolis, of counsel), for appellee.

KELLEY, Chief Judge.

This appeal presents only a question of law. The question is: Does an amendment extending the time for filing claims under the Indiana Occupational Diseases Act [Acts 1937, ch. 69, § 25(c), Burns' 1952 Replacement, § 40-2225(c)] from one year to two years, authorize the filing of a claim thereunder after one year but within two years from the date of a disablement which occurred at a time when the one year period was effective, said amendment being enacted prior to the expiration of the one year period. Appellant suffered his disablement on May 28, 1954. On that date said § 25(c) of ch. 69, Acts 1937, Burns' 1952 Replacement, § 40-2225(c) provided that claims for compensation shall be filed within one (1) year after the date of disablement. By Acts 1955, ch. 195, § 2(c), said § 25(c) of ch. 69 of the 1937 Acts, was amended, effective March 9, 1955, to provide that such claims shall be filed within two (2) years after the date of disablement. Appellant filed his claim on March 20, 1956, and the Industrial Board held that it had no jurisdiction in that the claim was not filed within one year after appellant's disablement. We are asked to reverse that award as being contrary to law.

In the case of Oberg v. D. O. McComb & Sons, 1957, 127 Ind.App. 278, 141 N.E.2d 135, we held that when the time for the filing of a claim under said 1937 Act had expired prior to the effective date of the 1955 amendment, the latter did not have the effect of revitalizing appellant's claim filed more than one year after his disablement. In the case now before us, the 1955 amendment became effective prior to the expiration of one year following appellant's disablement and prior to the filing of his claim for benefits. For this reason, appellant contends that the 1955 amendment granted him two years from the date of his disablement in which to file his claim and that having done so, his claim was filed in time.

It has been consistently held by our courts that the provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., are construed in the nature of a contract between the employer and employee and in the Oberg case, above referred to, it was declared that the provisions of the Occupational Diseases Act are also to be construed as in the nature of a contract between the employee and the employer. See Oberg v. McComb & Sons, supra, points 1-4.

The contractual rights, duties and obligations of the parties are supplied and defined by the respective Workmen's Compensation Act and Occupational Diseases Act. By the terms of said Acts all the common law remedies and defenses are dispensed with. The employee's potential right to compensation and the obligation of the employer to pay when the potential right is established spring from the contract, not from tort or an act of negligence. By reason of the contractual relationship, the employee is not required to allege or prove any tort or act of negligence by the employer and the latter cannot set up common law defenses to the employee's action or claim. The employer, when the contractual right of the employee to the benefits afforded by the contract has been established, must discharge his contractual liability by paying such benefits at the time or times and in the amount or amounts provided in the contract.

Among other considerations, the contract bears the mark of mutuality by providing the limits of the employer's financial liability and the limit of the time within which the employee's claim against the employer must be filed. By the contract, the employee has agreed that if he asserts a claim against the employer, which claim, as we have said, is a potential right of recovery arising out of the provisions of the contract, he will file such claim within the time agreed upon in the contract. Consequently, the employer's liability, which also arises out of the contract terms, is limited in time to the period within which the employee has agreed to file his claim or action.

Thus the 'time within which the suit must be brought (by the employee) operates as a limitation of the liability, and not of the remedy alone. It is a condition attached to the right to sue at all. Time has apparently been made of the essence of the right, and the right is lost if the time is disregarded.' (The bracket and italics are ours.) Keser v. U. S. S. Lead Refinery, 1928, 88 Ind.App. 246, 163 N.E. 621, 622; 78 A.L.R. 1294.

In Oberg v. McComb & Sons, supra [127 Ind.App. 278, 141 N.E. 138], it is said:

'It follows that the Occupational Diseases Act affords a separate and distinct contract, with terms and conditions supplied by the statute, between each employee and his employer. It follows, also, that the application of the various terms of the statutory contract is governed by the particular circumstances arising and existing with reference to the claim of each employee. Thus it appears that appellant's statutory contract with the appellee, at the time appellant suffered his disablement, was that he, appellant, had one year from the date of his disablement within which to file his claim; while the statutory contract of another employee of appellee, whose disablement began on or subsequent to March 9, 1955, gave him two years from the date of his disablement within which to file his claim.' (Our emphasis.)

In the same case it is further said:

'Prior to the amendment effective March 9, 1955 the rights of the parties under their contract, by force of circumstances occurring during the life of said contract, had become fixed and matured. The subsequent enlargement of the time within which claims could be filed did not, we think, alter or change the fixed status of the parties.' (Our emphasis.)

While the expressions in the Oberg case are not here conclusive nor determinative they shed light upon the path now tread. It would seem without room for dispute that if appellant possessed a potential right to benefits his claim or cause of action therefor arose, by reason of and on the date of his disablement (May 28, 1954), and existed only by virtue of his then prevailing statutory contract with appellee. That contract, as evidenced by the Occupational Diseases Statute then in force, provided that he would assert his claim within one year after his disablement. Under that contract appellee's liability to pay any benefits awarded or agreed upon became fixed. And such potential liability of appellee, under the provisions of his contract with appellant, remained subject to the exercise of appellant's potential right during the agreed time of one year after the disablement.

If appellant's contention is to be adhered to, then, in effect, we would be required to say that although appellant's right to claim benefits arose under one express contract, yet he should be permitted to recover upon the terms of another and different contract. It seemingly must be conceded that the contract, evidenced by the Occupational Diseases Act, in force and effect between the parties on the date of appellant's disablement is not the contract which appellant now seeks to enforce against appellee. The contract now sought to be enforced by appellant is evidenced by the Occupational Diseases Act on March 9, 1955, with provisions differing from those prevailing on May 28, 1954.

Appellant's disablement and his potential right to proceed for recovery of benefits therefor came into esse at the time his contract was evidenced by the Act of 1937, not the Act of 1955. The latter Act became effective after appellant's contractual right to seek recovery had accrued. The terms and conditions supplied by the Act in existence at the time of appellant's disablement, including the provision as to the time within which he would assert his claim against appellee, are the terms and conditions which control and which appellant would be required to rely upon. The time limitation provided therein is a limitation of the employer's liability and is a condition attached to the right to proceed with the action and the right to recover therein; and the burden rests upon the employee to prove that the asserted right was filed within the time provided by the Act which constituted the contract between the parties at the time the right to assert a claim for disablement arose. Any other construction would provoke confusion and uncertainty and render the contract between the parties an instrument only of form without any reliable substance.

Assume, for instance, that the employee's disablement occurred on February 1, 1955, and the time limitation was then one year. On March 9, 1955, an Act becomes effective which extends the time limitation to two years. Now, under appellant's contention, the employee would, by virtue of the new Act, have until January 31, 1957, to file his claim. But on a day prior to January 31, 1957, an Act is enacted by the Legislature, containing an emergency clause, which extends the time limitation to fifteen years. If appellant's proposal is adopted, the employee would then have until January 31, 1970 in which to file his claim. And it is possible that succeeding legislatures during the fifteen year period could variously change the time limitation. It is apparent from the above assumption, however improbable it may be considered, that endless confusion and sacrifice of contractual definiteness would be possible upon judicial recognition of appellant's contention. The general aim of both the Workmen's Compensation and Occupational Diseases Acts is to provide contractual provisions conducive to prompt and undelayed...