Peterson v. Federal Mining & Smelting Co.

• Decision Date: 02 July 1946
• Docket Number: 7294
• Court: Idaho Supreme Court
• Parties: PETERSON v. FEDERAL MINING & SMELTING CO

170 P.2d 611

67 Idaho 111

PETERSON v. FEDERAL MINING & SMELTING CO

No. 7294

Supreme Court of Idaho

July 2, 1946

Appeal from Industrial Accident Board.

Affirmed.

Robert E. Brown, of Kellogg, for appellant.

Chapter 138 of the 1945 Session Laws is unconstitutional under the provisions of Article 11, Section 12, Idaho Constitution prohibiting the legislature to pass laws that are retroactive in their operation. Article 11, Section 12, Idaho Constitution; 11 Am.Jur. p. 1194, § 366; State v Parsons, 58 Idaho 787, 80 P.2d 20; J. C. Penney v Diefendorf, 54 Idaho 374, 32 P.2d 784; British America Assurance Co. v. Colorado & S. Ry. Co., 52 Colo. 589, 125 P. 508, 125 P. 1135, 41 L.R.A.,N.S., 1202.

While it is the general rule that a statute is intended to operate prospectively, yet if the language is clear only when read in a retrospective sense it will be construed to have been the intent of the legislature for it to operate retrospectively. Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81; Peavey v. McCombs, 26 Idaho 143, 140 P. 965.

T. P. Wormward, of Kellogg, for respondent.

Chapter 138 of the 1945 Session Laws is not retroactive as to the claim of Frida Peterson because her claim did not arise until decedent's death, which occurred subsequent to passage of the Act. Kunst v. General Bronze Corporation et al., 1942, 264 A.D. 494, 35 N.Y.S.2d 878; State ex rel. Carlson v. District Court, 1915, 131 Minn. 96, 154 N.W. 661; Messnick v. Kahn Bros. et al., 1932, 235 A.D. 114, 256 N.Y.S. 281; Industrial Commission of Ohio v. Kamrath, 1928, 118 Ohio St. 1, 160 N.E. 470; State Treasurer of State of New York v. Vanderbilt et al., 1927, 220 A.D. 61, 220 N.Y.S. 521.

Chapter 138 of the 1945 Session Laws is not retroactive as to the claim of Frida Peterson even if it were held to be a survival of a claim of the decedent because the latter's claim would not arise until "total disability", which occurred after passage of the Act. Silva v. Erie Forge Co. et al. (State Workmen's Ins. Bd., Intervener), 1942, 149 Pa.Super. 251, 27 A.2d 727; King et al. v. St. Louis Steel Casting Co. et al., 1944, 353 Mo. 400, 182 S.W.2d 560; Belanowitz v. Travelers Insurance Co., 1940, 123 N.J.L. 574, 10 A.2d 178; Hirst v. Chevrolet Muncie Div. of Gen. Motors, Ind.App., 1941, 33 N.E.2d 773.

Budge, Justice. Givens, Holden, and Miller, JJ., concur. Ailshie, C. J., did not participate.

OPINION

Budge, Justice.

This appeal is from an award of the Industrial Accident Board in favor of claimant, from which defendant appealed. The material facts, as stipulated, are substantially as follows:

"The Federal Mining and Smelting Company [appellant] is now and for many years prior hereto has been engaged in the mining of metalliferous ores, * * * Shoshone County,

"Edward Peterson was on the first day of May, 1945, and for more than ten (10) years prior thereto, has been in the employ of the Federal Mining and Smelting Company in its flotation mill at the Morning Mine at Mullan * * * during at least five years of the period of such employment has been exposed to the inhalation of silica dust. That by reason of illness from silicosis with contributory pulmonary tuberculosis, Edward Peterson was disabled from work from May 2nd, 1945, to May 6th, 1945, inclusive; that on the 7th day of May, 1945, he returned to his regular employment, with the defendant company herein, and worked until May 11th, 1945, after which date he was totally disabled from such work by reason of such illness and subsequently and on June 3rd, 1945, he died; that the cause of his disease was diagnosed as silicosis with contributory tuberculosis; that Edward Peterson was a married man and left surviving him a widow, Frida Peterson, the claimant herein; that he had no dependent children; that he had been steadily employed by defendant earning an average weekly wage of $ 45.00.

"That it is not claimed by the claimant herein, that Edward Peterson was injured by an accident arising out of or in the course of his employment, but claim is made solely under the provisions of the Occupational Disease Compensation Law of the State of Idaho.

"That subsequent to the death of Edward Peterson and on June 6th, 1945, Frida Peterson, the claimant herein, filed with the Industrial Accident Board * * * her claim in writing under the provisions of the Occupational Disease Compensation Laws of the State of Idaho. Thereafter and on or about the 5th day of July, 1945, claimant and defendant filed with the Industrial Accident Board * * * for its approval, an agreement whereby defendant agreed to pay to claimant as surviving widow of Edward Peterson, a total sum of Three Thousand ($ 3,000.00) Dollars pursuant to the provisions of Section 43-2119 of the Occupational Disease Compensation Law of the State of Idaho. That on the 6th day of July, 1945, the Industrial Accident Board notified the defendant herein that it would not approve such agreement by reason of the provisions of Section 43-2119 of the Occupational Disease Compensation Law, as amended by Chapter 138, Session Laws, 1945."

Under the facts stipulated, the question here presented is, whether or not Chapter 138, Sess.Laws 1945, is retroactive and therefore unconstitutional as applied to the claim of Frida Peterson.

The record establishes the following facts: (1) That May 8, 1945, was the day on which the 1945 amendment to sec. 43-2119, I.C.A., became effective; (2) that Edward Peterson became totally disabled for work by reason of silicosis with contributory pulmonary tuberculosis, May 11, 1945; (3) that June 3, 1945, was the date Edward Peterson died.

It therefore appears that Edward Peterson became totally disabled and died subsequent to the amendment of sec. 43-2119, I.C.A. Appellant strenuously contends that chap. 138, Sess.Laws, 1945, supra, is retroactive as to the claim of Frida Peterson.

The Industrial Accident Board made its award in favor of claimant computing compensation to be paid to her under chap. 138 Sess.Laws, 1945, amending sec. 43-2119, I.C.A. The 1945 amendment increased the maximum recovery provided for in sec. 43-2119, supra. Appellant's contention is based on the theory that since Edward Peterson was in the employ of appellant prior to the amendment, the compensation payable to Frida Peterson, claimant herein, was limited to the amount of such compensation as provided for in said sec. 43-2119, supra, and was not entitled to be compensated under the amendatory provisions, and to hold otherwise would be in violation of art. 1, sec. 16, Idaho Constitution, and art. 1, sec. 10, United States Constitution, by the impairment of the contract between employer and employee, by imposing upon the employer retrospectively a new liability and obligation on a contractual relationship existing under prior law. In other words, that by reason of the fact that Edward Peterson was an employee of appellant, and became so employed prior to the amendatory act of 1945, compensation benefits...