Jenkins v. Heaberlin
| Decision Date | 30 April 1929 |
| Docket Number | (No. 6505) |
| Citation | 107 W.Va. 287 |
| Court | West Virginia Supreme Court |
| Parties | Lucy Jenkins v. C. L. Heaberlin, Compensation Comm'r. |
Master and Servant Law Forbidding Award for Injury to Workman Except Within One Year After Death in Fatal Cases is Not Retroactive (Act Reg. Sess. 1929, Senate Bill No. 200, § 40).
Act of the Legislature, Regular Session 1929 (Senate Bill No. 200, in effect from passage), amending the Workmen's Compensation Law of the state, and providing in section 40 that "no further award may be made except, within one year after death of employee in fatal cases" is not retroactive in its operation, and therefore does not bar a proceeding for award on account of a fatal injury which occurred more than a year prior to the amendment, it appearing that application for such award was properly pending when the Legislature passed the amendment.
(Workmen's Compensation Acts, C. j. §33, p. 40, n. 93.)
Appeal from Ruling of State Compensation Commissioner.
Proceedings under the Workmen's Compensation Law byLucy Jenkins, claimant, to recover compensation for the death of Lon Jenkins, employee of the Bottom Creek Coal Company. Prom a ruling of C. L. Heaberlin denying the claim, claimant appeals.
Reversed and remanded.
Claude L. Smith, for appellant.
Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for Commissioner.
Lon Jenkins was killed December 30, 1924, in the mines of the Bottom Creek Coal Company at Vivian, in McDowell County. Proof of claim was filed for compensation by Lucy Jenkins, bis mother, in May, 1925. From Alabama where she resided she and her attorney corresponded lengthily and frequently with the compensation commissioner in regard to payment of the claim. It appears from this correspondence that the commissioner required additional and more specific proof of the amount of money contributed by Lon to his mother during the year prior to his death, and for this reason compensation had not been allowed the mother. Finally, on April 3, 1929, she came to Charleston and gave her deposition before Mr. Knapp. claim clerk for the commissioner. By this deposition the extent of her dependency was shown, but the commissioner refused to make any award for compensation because of a limitation provision of section 40 of Senate Bill No. 200, which became a law upon passage March 7, 1929. The pertinent portion of said section follows: "The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modications or change with respect to former findings or orders with respect thereto as in his opinion may be justified; provided, no further award may be made except, within one year after death of employee in fatal cases * * *." The commissioner says that by reason of said limitation there cannot now be any award on the said claim.
The claimant appeals from this ruling of the commissioner and asserts that the statute should not be given a retroactive effect. This is the sole question presented for decision. Recognition is given to the general proposition that a statute will be construed to operate in future only, and will not be given a retroactive effect unless the Legislature has expressed its intention to make it retrospective; but the commissioner takes the position that such general rule does not apply in the present case because, he says, the statute affects only the remedy or procedure and not the right. The case of Chicago Board of Underwriters v. Industrial Commission, 332 Ill. 611, is cited to support this contention. In that case the court held a statute similar to the one under consideration to be retroactive in effect and refused compensation to an applicant on that ground. The Court said: '
But, can a statute of limitation which destroys all right of recourse for an injury that has been suffered, in truth be said to affect the remedy alone? Is not the right of appellant destroyed by this statute if it be given retroactive effect? The right in itself may exist, but an inoperative and unenforceable right is a nullity. Ubi jus ibi remedium. To confine ourselves to the remedy alone is to beg the question.
Counsel for commissioner cite the case of McShan v. Heaberlin, 105 W. Va. 447, as being the only case in this state...
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