Hoyt Metal Co. v. Atwood

• Decision Date: 17 February 1923
• Docket Number: 3081.
• Citation: 289 F. 453
• Parties: HOYT METAL CO. v. ATWOOD.
• Court: U.S. Court of Appeals — Seventh Circuit

289 F. 453

HOYT METAL CO. v. ATWOOD.

No. 3081.

United States Court of Appeals, Seventh Circuit.

February 17, 1923

Rehearing Denied May 8, 1923.

D. E Keefe, of East St. Louis, Ill., for plaintiff in error.

H. J Bandy, of Granite City, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Defendant in error herein, plaintiff below, brought this action in the circuit court of Madison county Ill., to recover damages suffered through lead poisoning while in the employ of defendant. Defendant, a corporation organized under the laws of Missouri, and maintaining an office and doing business at Granite City, Ill., removed the suit to the federal court. Thereafter, plaintiff filed an amended declaration, consisting of seven counts, each of which charged defendant with a willful violation of some provision of a statute of the state of Illinois known as the Occupational Disease Act, effective July 1, 1911 (Laws 1911, p. 330). Plaintiff's demurrer to defendant's special plea of jurisdiction was sustained. Trial resulted in a verdict and judgment for plaintiff.

After judgment was entered and a writ of error to this court issued, the Legislature of Illinois passed an act, to be effective July 1, 1921, purporting to amend section 15 of the Occupational Disease Law (Laws 1921, p. 444), and providing, in substance, that employees who sustain an occupational disease shall receive compensation in accordance with the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, Secs. 126-152i).

A motion to dismiss was filed in this court, in support of which defendant contends that the court is without jurisdiction to hear and determine the cause because of the aforementioned amendment. This contention is the chief reliance of defendant for reversal of the judgment.

Other assignments of error relied upon are: Erroneous exclusion of testimony, failure of evidence to support judgment, refusal to give requested instructions, granting plaintiff leave to file an additional count, and unconstitutionality of section 15 of the Occupational Disease Law.

Defendant contends this court is without jurisdiction to hear and determine this cause because the amendatory statute was one relating to remedy only, and that therefore it applied to pending, as well as future, actions. With this contention we cannot agree.

The effect of the amendatory act was to take from plaintiff the value of a $7,000 judgment which he had recovered, and to compel him to start anew in a proceeding before the Industrial Board, wherein recovery was limited to $3,500.

Moreover by the provisions of the Workmen's Compensation Act, notice to employer must be given within 30 days and claim for compensation made within six months. Neither of these steps are necessary under the Occupational Disease Law, and if plaintiff were now compelled to proceed in accord with the Workmen's Compensation Act, he would be unable to comply with such requirements and his right of recovery would be lost. No provision for a reasonable time, or any time, within which such preliminary steps might be taken and protection had against lapse of time caused by pursuit of a remedy under the law in force at the time the cause of action accrued, is made by the amendment.

That an accrued right of action is a vested property right is well settled. Norris v. Tripp, 111 Iowa, 115, 82 N.W. 610; Tufts v. Tufts, 8 Utah, 142, 30 P. 309, 16 L.R.A. 482; Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N.W. 550. Certainly a judgment is a vested property right. In 6 R.C.L.p. 319, we find the rule set forth correctly, we think:

'A judgment is such a vested right of property that the Legislature cannot not by a retroactive law either destroy or diminish its value in any respect. ' Merchants' Bank v. Ballou, 98 Va. 112, 32 S.E. 481, 44 L.R.A. 306, 81 Am.St.Rep. 715; Strafford v. Sharon, 61 Vt. 126, 17 A. 793, 18 A. 308, 4 L.R.A. 499; Roche v. Waters, 72 Md. 264, 19 A. 535, 72 L.R.A. 533.

By a long line of decisions, courts have uniformly held that a statute is presumed to operate prospectively only, unless an intent to the contrary clearly appears, and this is especially applicable where the statute, if given a retroactive operation, would be invalid as impairing the obligation of contracts, or interfering with vested rights. Sutherland, Statutory Construction, Secs. 463, 464; U.S. v. Jackson, 143 F. 783, 75 C.C.A. 41; Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N.E. 237; Southwestern Coal Co. v. McBride, 185 U.S. 499, 22 Sup.Ct. 763, 46 L.Ed. 1010; U.S. v. United Shoe Machinery Co. (D.C.) 264 F. 138.

The statute in question, though purporting to affect only the remedy, in reality impairs the value of a right. Though it may be true that parties to actions have no vested right in rules of procedure, and the latter may be changed at will by the Legislature, without affecting the right, yet if statutes, professing only to affect procedure or remedy, do in fact thereby affect or impair the right, they are void or inapplicable as against the enforcement of the right thus impaired. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that result is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case, it is prohibited by the Constitution. Tennessee v. Sneed, 96 U.S. 69, 24 L.Ed. 610; Bronson v. Kinzie et al., 1 How. 311, 11 L.Ed. 143; McGahey v. Virginia, 135 U.S. 695, 10 Sup.Ct. 972, 34 L.Ed. 304.

In Strafford v. Sharon, supra, where a town had fully perfected its right, under the law, to contribution for the expense of a bridge from another town by obtaining a judgment therefor, a subsequent statute attempted to deprive it of this right and require a new proceeding against another party, the court, in dismissing the petition of the town of Strafford against the town of Sharon under the subsequent statute, said:

'Nor can it be urged in opposition to the foregoing considerations that there is but the substitution of one remedy for another, without involving the impairment of any contract right. Wherein consists this change of remedy? It is, in substance, the substitution of one for another party petitionee. The burdened town is now to seek its remedy from the state, while before it was obtained from the benefited town or towns. But in the case before us the petitionee has already sought and obtained its remedy, in the form of a judgment against the petitioner, under the law as it stood at the time when the action was brought and prosecuted. It has fully perfected its right under the law. Shall the petitionee now be deprived of this established and adjudicated right, and sent back to begin de novo to again establish the same right, but against another party? * * * The same right might or might not be established, and a substantially similar relief obtained in the end; but the party would be driven to another action, with all its expense, delay, and uncertainty, the benefit of the expense incurred in the former proceeding lost to it, and compelled to fight the battle all over again, and against another party, before it could, if successful, in the end reach the same or a similar result as one already reached in strict accordance with the law as it stood at the time, and by the law made a final settlement of the controversy save for the periodical review provided for. And when this all was done, it might be that a new law would have

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