Wentz v. Price Candy Co.

• Decision Date: 01 November 1943
• Docket Number: 38516
• Parties: May Wentz, Appellant, v. Price Candy Company et al
• Court: Missouri Supreme Court

175 S.W.2d 852

352 Mo. 1

May Wentz, Appellant, v. Price Candy Company et al

No. 38516

Supreme Court of Missouri

November 1, 1943

Rehearing Denied December 6, 1943.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Reversed and remanded (with directions).

S M. Mandell, N. R. Fischer and E. H. Gamble for appellant.

(1) As the 1941 amendment disturbs no vested right, it applies to any cause of action which was not barred on its effective date, October 10, 1941, even if such construction renders it retrospective. Sec. 3727, R.S. 1939; Laws 1941, p. 718; For precedents see points (2), (3) and (4), infra. (2) Construing the new statute as applicable to all claims enforcible when it took effect, though originating prior thereto, does not violate the constitutional inhibition against retrospective or retroactive laws (Mo. Const., Art. 2, Sec. 15), which does not apply to procedural or jurisdictional laws nor to those which abrogate vested rights under the welfare clause (Mo. Const., Art. 2, Sec. 4). Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257; Aetna Ins. Co. v. Hyde, 315 Mo. 113, 285 S.W. 65; Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708; In re: Sparrow, 338 Mo. 203, 90 S.W.2d 401; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3; Johns v. State Soc. Sec. Comm., 143 S.W.2d 161. (3) New statutes enlarging the time allowed for the assertion of a claim apply to preexisting claims which under the old law were enforcible at the operative date of the new. Carscadden v. Territory of Alaska, 105 F.2d 377; The Fred Smartley v. Pennsylvania Sugar Co., 108 F.2d 603; Chisholm v. Cherokee, etc., Co., 36 F.Supp. 967; Gahling v. Colabee, etc. Co., 37 F.Supp. 759. (4) The increase of time to file a compensation claim from six months to one year applies to all claims not barred when the increase became effective and the trial court erred in not reversing the award for ruling otherwise. Cytron v. Transit Co., 205 Mo. 692, 104 S.W. 109; Clark v. R. Co., 219 Mo. 524, 118 S.W. 40; Donovan v. St. Ry. Co., 150 Minn. 364, 185 N.W. 388; Baltimore v. Perticone, 171 Md. 268, 188 A. 79.

Leo T. Schwartz and Maurice J. O'Sullivan for respondents.

Schrabauer v. Schneider Eng. Co., 25 S.W.2d 529, 224 Mo.App. 304; Murphy v. Burlington Overall Co., 34 S.W.2d 1035, 225 Mo.App. 866; Bricker v. Gille Mfg. Co., 35 S.W.2d 662, 225 Mo.App. 989; Higgins v. Heine Boiler Co., 41 S.W.2d 565, 328 Mo. 493; Price v. K.C. Public Service Co., 42 S.W.2d 51; Wheeler v. Mo. Pac. Ry. Co., 42 S.W.2d 579, 328 Mo. 888, 33 S.W.2d 179; McConnell v. Hennessy, 44 S.W.2d 195; Helle v. Eyermann Contr. Co., 44 S.W.2d 234; Fisher v. Ely & Walker Dry Goods Co., 46 S.W.2d 902; Perry v. J. A. Kreis & Sons, 49 S.W.2d 220; Caldwell v. J. A. Kreis & Sons, 50 S.W.2d 728, 227 Mo.App. 127; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130; Price v. K.C. Pub. Service Co., 50 S.W.2d 1047, 330 Mo. 706; 42 S.W.2d 51; Wedemeier v. St. L. Malleable Cast. Co., 52 S.W.2d 569; Bridges v. Fruin-Colnon Const. Co., 52 S.W.2d 582; McEneny v. S.S. Kresge Co., 53 S.W.2d 1075; affirmed 62 S.W.2d 1067, 333 Mo. 817; Armstrong v. Union Elec. L. & P. Co., 60 S.W.2d 1013; Bruce v. Missouri-Kansas-Texas Ry. Co., 73 S.W.2d 425, 229 Mo.App. 124; Dewey v. Union Elec. L. & P. Co., 83 S.W.2d 203; Dennis v. Wrought Iron Range Co., 89 S.W.2d 127, 231 Mo.App. 969; Allen v. St. L.-S.F. Ry. Co., 90 S.W.2d 1050, 338 Mo. 395; Gleason v. Titanium P. Co., 93 S.W.2d 1039; Brown v. Chicago, R.I. & P. Ry. Co., 98 S.W.2d 129, 231 Mo.App. 126; Colton v. Edgar Walsh & Co., 102 S.W.2d 677; Cleveland v. Laclede Christy Clay Prod. Co., 129 S.W.2d 12; Conn v. Chestnut Street Realty Co., 133 S.W.2d 1056, 235 Mo.App. 309; Smith v. Federated Metal Co., 133 S.W.2d 1112; Schmitz v. Carr Trombley Mfg. Co., 139 S.W.2d 1064; Parker v. St. Louis Car Co., 145 S.W.2d 482; Lutman v. American Shoe Mach. Co., 151 S.W.2d 701; Martensen v. Schutte Lumber Co., 162 S.W.2d 312; Reeves v. Fraser-Brace Eng. Co., 172 S.W.2d 274.

OPINION

Douglas, P.J.

This is a proceeding under the Workmen's Compensation Act certified to this court by the Kansas City Court of Appeals on the ground its decision is contrary to decisions of the St. Louis Court of Appeals. 168 S.W.2d 462. We consider the case as we would a direct appeal. Const. Art. VI, Amd. 1884, Sec. 6.

Appellant's employment by respondent Candy Company was within the Compensation Act. She was injured on April 26, 1941. At that time the statute required claims to be filed with the Compensation Commission within six months from the date of injury. Sec. 3727, R.S. 1939. Accordingly, she had until October 26, 1941, to file her claim. However, on October 10, 1941, while appellant's claim was still alive, an amendment to Section 3727 became effective extending the time for filing claims from six months to one year. 1941 Laws, 718. Appellant filed her claim on December 26, 1941. This was within a year but was after six months from the date of injury. Respondents contended before the commission appellant's claim was filed too late. The commission upheld their contention and refused compensation. The circuit court affirmed the commission but the Kansas City Court of Appeals found to the contrary and held the claim was filed in time.

The question for decision is whether the statute as amended is applicable to claims existing at the time the amendment became effective or only to claims accruing after such time. If the former, appellant's claim was timely filed. If the latter, appellant's claim remained subject to the six months limitation which period had expired and her claim was filed too late. To answer the question propounds other questions. Is Section 3727 a statute of limitation which operates merely on the remedy? Or, is the time limit such an integral part of the right of action itself that its lapse extinguishes the right altogether?

A statute which affects only the remedy may properly apply to a cause of action which has already accrued and is existing at the time the statute is enacted. Ordinary statutes of limitation are held to affect the remedy only. The principle is well settled that the period of limitation prescribed by such statutes may be enlarged and become applicable to existing causes of action, but an enlargement of the period of limitation may not revive a cause of action which has been barred under the limitation as it previously existed. Anno. 46 A.L.R. 1101. It is the rule in this State that a statute dealing only with procedure or the remedy applies, unless the contrary intention is expressed, to all actions falling within its terms whether commenced before or after the enactment. Clark v. Kansas City, St. L. & Chi. R. Co., 219 Mo. 524, 118 S.W. 40; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3. If Section 3727 is found to govern the remedy only its amendment applies to appellant's claim; otherwise not.

The limitation imposed in a certain class of statutes has been held to operate on the right rather than on the remedy. Courts have distinguished between ordinary statutes of limitation and statutes creating a right with a special limitation appended to the exercise of the right on the ground the special limitation extinguishes the right rather than extinguishing the remedy. "A wide distinction exists between statutes providing for a limitation upon the remedy, and special statutory limitations enacted in qualification of a given right . . . The second class of statutes are more [than mere limitations on the remedy], for they create a right of action conditioned upon its enforcement within a prescribed period, the theory being that the lawmaking body which has the power to create the right may affix the conditions under which it is to be enforced, so that a compliance with those conditions is essential. In other words, where time is made the essence of the right created, the limitation is an inherent part of the statute out of which the particular right arises, so that there is no right of action whatsoever independent of the limitation, and a lapse of the statutory period operates to extinguish the right altogether. 37 C.J. 686." Schrabauer v. Schneider Engraving Product Co., 224 Mo.App. 304, 25 S.W.2d 529. And see the discussion in Barker v. The Hannibal & St. Joseph Ry. Co., 91 Mo. 86, 14 S.W. 280.

We believe this distinction first arose in determining whether the limitation statutes of the forum governed a specially limited statutory right created by a foreign jurisdiction. In Story, Conflict of Laws, 8th Ed., Sec. 582, we find "Suppose the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period, and the parties are resident within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case; under such circumstances, the question might properly arise, whether such statutes of limitation or prescription may not afterwards be set up in any other country to which the parties may remove, by way of extinguishment or transfer of the claim or title. This is a point which does not seem to have received as much consideration in the decisions of the common law as it would seem to require. That there are countries in which such regulations do exist is unquestionable. There are states which have declared that all right to debts due more than a prescribed term of years shall be deemed extinguished; and that all titles to real and personal property not pursued within the prescribed time shall be deemed forever fixed in the adverse possessor." This court recognized Judge Story's distinction in Baker v. Stonebraker, 36 Mo. 338. See also Williams v. The St. L. & S.F. Ry....