Weil v. Taxicabs of Cincinnati
| Citation | 139 Ohio St. 198,39 N.E.2d 148 |
| Decision Date | 21 January 1942 |
| Docket Number | 28663. |
| Parties | Editor's Note: Additions are indicated by <<+Text+>> and deletions by <<-Text->>. WEIL v. TAXICABS OF CINCINNATI, Inc. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. Where a legislative act is amended, the part of the original act which remains unchanged is to be considered as having continued in force as the law from the time of its original enactment and new portions as having become the law only at the time of the amendment.
2. A statutory amendment which takes away or impairs an accrued common-law right of action, even though it attempts to substitute therefor the right to compensation under the Workmen's Compensation Act for an injury which is the basis of such common-law right of action, deals with vested substantive and not remedial rights, and is within the purview of the constitutional inhibition against the legislative enactment of retroactive laws.
3. Section 1465-68a, General Code, as amended effective May 26 1939, 118 Ohio Laws, 422, which, for the first time, gave a right to compensation under the Workmen's Compensation Act to a claimant whose claim is based upon chronic carbon monoxide poisoning as an occupational disease, did not operate retroactively, and a common-law right of action which was based upon the contraction of chronic carbon monoxide poisoning, which accrued on February 8, 1939, and upon which an action was brought on October 25, 1939, was not barred by Section 1465-70, General Code, as amended effective May 26, 1939, 118 Ohio Laws, 426.
This action was instituted in the Common Pleas Court of Hamilton County by Carrie Weil, as administratrix of the estate of Albert Weil, deceased, her husband, against the defendant to recover damages for his wrongful death. It is claimed that Weil, on November 26, 1938, contracted chronic carbon monoxide poisoning which resulted in his death from broncho-pneumonia and cardiac break on February 8, 1939.
The amended petition alleges that on November 26, 1938, and for four and onehalf years prior thereto plaintiff's decedent was employed as night clerk in the garage of the defendant company; that the garage was so constructed that plaintiff's decedent was subjected to the presence of fumes from the motors of taxicabs which filled the garage with gases, consisting in part of carbon monoxide, with the result as above stated; that the poisoning and resultant death of plainiff's decedent was directly and proximately caused by the negligence of the defendant in failing to provide proper ventilation in the garage in violation of certain statutory requirements and prescribed rules of the Industrial Commission; and that plaintiff is the widow and only next of kin of the decedent dependent upon him for her support.
The defendant filed a general demurrer to the amended petition on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained. The plaintiff failed to plead further and judgment was entered for the defendant. On appeal to the Court of Appeals this judgment was reversed and the cause was remanded to the Common Pleas Court for further proceedings. The case is now in this court by reason of the allowance of a motion to certify the record.
Freiberg & Simmonds, of Cincinnati, for appellant.
B. Wm. Heidkamp and Arthur F. Shott, both of Cincinnati, for appellee.
This controversy involves the construction which is to be given to Sections 1465-68a and 1465-70, General Code, as amended, both effective May 26, 1939 (118 Ohio Laws, 422 and 426).
Section 1465-68a, General Code, as amended, provides, among other things, that the dependent of an employee whose death is caused by any occupational disease as therein defined, shall on and after July 1, 1921, be entitled to compensation provided under the Workmen's Compensation Act with certain exceptions not necessary to be here considered. For the first time, the statute, as thus amended, covered all occupational diseases, including the disease of carbon monoxide poisoning which is involved in this action. The date from which claims for such compensation may be lawfully asserted, namely July 1, 1921, has been continuously in this section of the statute since its first enactment, effective August 5, 1921 (109 Ohio Laws, 183).
Section 1465-70, General Code, as amended effective May 26, 1939, is as follows, the italicized portion indicating the additions made by the amendment and the asterisks indicating the deletions:
'Employers who comply with the provisions of <> <section 1465-69+>> shall not be liable to respond in damages at common law or by statute, <> for <> injury, <this act or not,+>> or <> death <> of any employe, wherever occurring, during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation direct to his injured or the dependents of his killed employes as herein provided.
<'No action against an employer, who has complied with the provisions of section 1465-69, to recover damages at common law or by statute for any injury, disease or bodily condition, or death resulting from any injury, disease or bodily condition, of an employe arising out of his employment by such employer shall be commenced after 180 days after the effective date of this act.'+>>
The chronology of events, important for the consideration and decision of this case, as shown by the record, is as follows:
Date of contraction of chronic carbon monoxide poisoning by plaintiff's decedent, November 26, 1938; date of death of plaintiff's decedent, February 8, 1939; effective date of amendment of Sections 1465-68a and 1465-70, General Code, May 26, 1939; and date of filing plaintiff's petition, October 25, 1939.
This court has held that the cause of action of a dependent of a killed employee accrues at the time the employee dies from an injury received in the course of an arising out of his employment. Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470. Plaintiff's cause of action, therefore, arose on February 8, 1939, the date of the death of plaintiff's decedent. Chronic carbon monoxide poisoning did not, under the law, become a compensable disease until May 26, 1939, and was neither so compensable at the time plaintiff's decedent contracted the disease nor at the time of his death, when plaintiff's cause of action arose.
Assuming that (aside from the retroactive effect of Section 1465-68a, General Code, making compensable the disease of chronic carbon monoxide poisoning) a claimant had a common-law action against his employer on account of the contraction of such disease as the result of the negligence of such employer, he could prosecute such action on any such claim which arose prior to May 26, 1939, provided his petition was filed not later than November 22, 1939, the limitation date fixed by Section 1465-70, General Code, for the bringing of such actions. The question here to be determined is whether the amendment of Section 1465-68a, General Code, effective May 26, 1939, giving a right to compensation under the Workmen's Compensation Act to a claimant whose claim is based upon chronic carbon monoxide poisoning contracted at any time since July 1, 1921, under the limitations of Section 1465-70, General Code, as amended effective May 26, 1939, bars such common-law action accruing before the amendment became effective, unless such common-law action is barred by the requisite lapse of time.
The Court of Appeals held that a common-law action accruing before the amendment of Section 1465-68a, General Code, became effective, as did the cause of action of the plaintiff herein, was not barred and this court is in accord with that view.
The claim is made by the defendant that, by force of Section 35 of Article II of the Constitution, a bar automatically becomes effective whenever a right to compensation accrues under the statute. The pertinent part of this constitutional provision is as follows: 'Such compensation sahll be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.'
But this provision of the Constitution has no force or efficacy unless the claim or cause of action of the plaintiff, arising as it did on February 8, 1939, is controlled by the retroactivity of the statute.
The Constitution on this subject, Section 28 of Article II, provides: 'The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this State.'
In the interpretation of this latter provision of the Constitution, it has been generally held that a statute which relates exclusively to remedial rights is not within the purview of the constitutional inhibition against the legislative enactment of retroactive laws. Smith v. New York Central R. Co., 122 Ohio St. 45, 170 N.E. 637, and cases cited; State ex rel. Slaughter v. Industrial Commission, 132 Ohio St. 537, 9 N.E.2d 505; Terry v. Anderson, 95 U.S. 628, 633, 24 L.Ed. 365.
The question then arises as to whether the statute retroactively took away plaintiff's cause of action which had theretofore accrued and substituted therefor another substantive...
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