Wentz v. Price Candy Co.

• Decision Date: 01 February 1943
• Docket Number: No. 20286.,20286.
• Citation: 168 S.W.2d 462
• Parties: WENTZ v. PRICE CANDY CO. et al.
• Court: Missouri Court of Appeals

168 S.W.2d 462

WENTZ v. PRICE CANDY CO. et al.

No. 20286.

Kansas City Court of Appeals. Missouri.

February 1, 1943.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by May Wentz, opposed by Price Candy Company, employer, and Liberty Mutual Insurance Company, insurer. From a judgment affirming an order of the Commission denying compensation, the claimant appeals.

Cause certified and transferred to the Supreme Court.

E. H. Gamble, of Kansas City, for appellant.

Wm P. Nolan, of Kansas City, for respondents.

BLAND, Judge.

This proceeding, commenced before the Compensation Commission, on December 26, 1941, is one in which claimant seeks compensation on account of having suffered an injury on April 26, 1941, while performing services for the defendant, Price Candy Company, in Kansas City.

The Price Candy Company and the insurer, Liberty Mutual Insurance Company, answered, asserting that the claimant had failed to file her claim within the time prescribed by law. The Commission upheld this contention of the defendants and refused compensation, whereupon claimant appealed to the Circuit Court of Jackson County. That court affirmed the award of the Commission, and claimant has appealed to this court.

Section 3727 R.S.1939, Mo.R.S.A. § 3727, provides that claims must be filed with the Commission within 6 months after the injury or death. The claim was not filed within that time and, under that statute as it stood on April 26, 1941, the claim was barred. However, claimant contends that, by reason of the amendment to the statute passed in 1941, and taking effect prior to the time her claim was barred under the statute before the amendment, which amendment extended the time of filing claims from 6 months to one year, her claim was filed in time. In other words, it is asserted, that the legislature, in amending the statute, by merely striking out the words "six months" therein and inserting in lieu thereof the words "one year", intended that the amendment have a retroactive effect and apply not only to claims arising in the future, but to all claims that had not been barred at the time of the enactment of the amendment.

If Section 3727, R.S.1939 is to be construed as purely a statute of repose, or one going to the remedy, claimant's contention must be sustained. Clark v. Kansas City, St. L. & C. Railroad Co., 219 Mo. 524, 534, 118 S.W. 40. However, if the statute is to be construed as not a limitation on the remedy but a limitation on the right, itself, the lapse of time involved operates not to bar the remedy but to extinguish the right. 37 C.J. pp. 686, 732; 17 C.J. pp. 1235, 1236, 25 C.J.S., Death, § 53 subsec. b; Barker v. Hannibal & St. Jos. R. Co., 91 Mo. 86, 91, 92, 14 S.W. 280; Higgins v. Heine Boiler Co. et al., 328 Mo. 493, 41 S.W.2d 565.

The overwhelming weight of authority is to the effect that where a given right is created by statute, which did not exist at common law, and the statute, giving the right, fixes the time within which the right shall be enforced, the time so fixed becomes a limitation or condition on such right. 37 C.J. p. 732; 17 C.J. p. 1235, 25 C.J.S., Death, § 53 subsec. b; 71 C.J. p. 965; Higgins v. Heine Boiler Co. et al., supra; Barker v. Hannibal & St. Jos. R. Co., supra; Schrabauer v. Schneider Engraving, etc., 224 Mo.App. 304, 25 S.W.2d 529; Brown v. Chicago, R. I. & P. R. Co. 231 Mo.App. 126, 98 S.W.2d 129; Lutman v. American Shoe Mach. Co., Mo.App., 151 S.W.2d 701; Cleveland v. Laclede Christy Clay Products Co., Mo.App., 129 S.W.2d 12; Helle v. Everman Contracting Co., Mo.App., 44 S.W.2d 234; Schmitz v. Carr Trombley Mfg. Co., Mo.App., 139 S.W.2d 1064.

However, the Supreme Court in the case of Cytron et ux. v. St. Louis Transit Co., 205 Mo. 692, 104 S.W. 109, and Clark v. Kansas City St. L. & Chicago R. Co., 219 Mo. 524, 118 S.W. 40, departed from this rule. Those cases involve statutes creating causes of action for wrongful death. Such actions, like those arising under the compensation law, were not known to the common law. See Cummins et al. v. Kansas City Publ. Serv. Co., 334 Mo. 672, 66 S.W.2d 920. An examination of the compensation statute, Section 3727, R.S.1939, and the death statute, Section 3656, R.S. 1939, Mo. R.S.A. §§ 3656, discloses that they both contain their own limitation as to the time in which the rights created may be enforced.

In the Cytron case the suit was commenced within the time required by the statute. The death statute requires that the husband and wife join in the suit but the husband, only, was made a party plaintiff in that case. Thereafter, and after the expiration of the time permitted by the statute for the filing of the suit, the wife joined as a party plaintiff. The point presented was as to whether the amendment constituted a new suit for, if it did, it was brought after the expiration of the time permitted. The court held that it did not. The defendants herein contend that this was all that the court decided. However, an examination of the opinion in the case shows that, in deciding that case, the Supreme Court considered the nature of the limitation contained in Section 2868 R.S. 1899 (now Section 3656, R.S.1939, Mo.R.S.A. § 3656), that is, whether it is a procedural statute or extinguishes the right. The court held that it was a procedural statute and, being such, it should be liberally construed and, when done so, the amendment bringing in the wife as a party should not be construed as the commencement of a new cause of action. In holding that the statute is one of limitation upon the remedy, that is, one of repose, or going to the matter of procedure, the court wholly ignored its own decision in Barker v. Hannibal & St. Jos. R. Co., supra, which ruled directly to the contrary.

The court said in the Cytron case, 205 Mo. loc. cit. 698, 699, 104 S.W. loc. cit. 110: "To avoid the settled rule (hereinafter pointed out) that the stiff letter of the statutory term of limitation may be gently coaxed or relieved against by the benevolent interpretation and application of the Code provisions on amendments, defendant's learned counsel argue that the foregoing section [section 2868, R.S. 1899 (Mo.R.S.A. § 3656)] is not so much a statute of limitation as it is a statute creating a condition; that as a condition it is distinguished from a limitation in the right of amendment, and the party must bring himself rigidly within the condition to be entitled to recover. * * * But we do not agree with that view. It seems to us that the argument of defendant's learned counsel proceeds on an overrefinement. The statute in hand is not a span more, or a whit less, than one of limitation and repose."

While defendants do not expressly state, they indirectly contend, that the language used in the above quotation is obiter dictum. However, wo do not consider that part of the opinion quoted as obiter.

The Supreme Court in Clark v. Kansas City St. L. & C. Railroad...