Wilson v. N.M. Lumber & Timber Co.

• Decision Date: 27 June 1938
• Docket Number: No. 4377.,4377.
• Citation: 42 N.M. 438,81 P.2d 61
• Court: New Mexico Supreme Court
• Parties: WILSONv.NEW MEXICO LUMBER & TIMBER CO.

42 N.M. 438

81 P.2d 61

WILSON

v.NEW MEXICO LUMBER & TIMBER CO.

No. 4377.

Supreme Court of New Mexico.

June 27, 1938.

Appeal from District Court, Sandoval County; Thomas J. Mabry, Judge.

Suit under the Workmen's Compensation Act by H. C. Wilson, claimant, opposed by the New Mexico Lumber & Timber Company, employer. From a judgment sustaining a demurrer by the employer, the claimant appeals.

Affirmed.

Where, at time of injury to employee, Workmen's Compensation Act limited time within which claim could be filed to six months after refusal or failure of employer to pay compensation, employee's right of action expired at the end of the six months' period of limitations, notwithstanding that during such six months' period an amendatory act substituting limitation period of one year for period of six months became effective. Comp.St.1929, § 156-113, as amended by Laws 1937, c. 92, § 7.

Mechem & Hannett and Donald B. Moses, all of Albuquerque, for appellant.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellee.

SADLER, Justice.

Claimant seeks to recover from defendant under the workmen's compensation act of New Mexico for injuries sustained on April 13, 1937. At the time of the injury the statute (1929 Comp., § 156-113) limited the time within which such a claim could be filed to six months after refusal or failure of the employer to pay compensation. On June 11, 1937, there became effective an amendment of that section (L.1937, c. 92, § 7) which substituted the words “one year” for the words “six months.” Claimant's suit was filed December 16, 1937, and the employer demurred on the ground “That said claim as so filed shows on its face that the statute of limitations has run against said claim and by virtue thereof the claimant's claim for compensation, all right to recover the same and the bringing of any legal proceeding for the recovery thereof are all forever barred.” The district court sustained the demurrer and claimant appealed.

Claimant contends that the one year period within which claims may be filed under the amendment is applicable to the injury which occurred before the amended act became effective, especially since the six months' period specified in Section 156-113 had not expired before the effective date of the amendatory act. We cannot agree with him.

[1] In order for claimant to come under the amended act, said act would have to receive a retroactive construction.

“As applied to statutes the words ‘retroactive’ and ‘retrospective’ may be regarded as synonymous and may broadly be defined as having reference to a state of things existing before the act in question. A retrospective law may be defined more specifically as one ‘which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence.’ Black on Interpretataion of Laws, 247.” Ashley v. Brown, 198 N.C. 369, 151 S.E. 725, 727.

[2] The general rule is that statutes, except those dealing with remedial procedure, are to be construed as prospective rather than retrospective unless there is a clear legislative intention to the contrary. Link v. Receivers of Seaboard Air Line Ry. Co., 4 Cir., 73 F.2d 149; Warner's Cafeteria v. John F. Trommer, Inc., 149 Misc. 613, 267 N.Y.S. 805; Wettengel v. Robinson, 300 Pa. 355, 150 A. 658; Ireland v. Shipley, 165 Md. 90, 166 A. 593; Bank of America Nat. Trust & Savings Ass'n v. Dennison, 8 Cal.App.2d 173, 47 P.2d 296; Jones v. Fidelity & Columbia Trust Co., 6 Cir., 73 F.2d 446; Mutual Relief Ass'n v. Parker, 171 Ark. 952, 287 S.W. 199; People ex rel. Cook County v. Nelson, 349 Ill. 193, 181 N.E. 635; Bretthauer v. Jacobson, 79 N.J.L. 223, 75 A. 560.

In the case last mentioned above the court said (page 561): “If the provision in the death act fixing the time within which suits instituted thereunder should be brought was an ordinary statute of limitations, dealing only with the remedy given to the plaintiffs, the conclusion reached by the court below would be sound beyond controversy; for it is entirely settled that, until the period fixed by such a statute has arrived, the statute is a mere regulation of the limitation, and, like other such regulations, subject to legislative control. But this provision of the death act is not an ordinary statute of limitations. It operates, not only as a limitation of the remedy given the plaintiffs, but also as a limitation of the liability which it creates against defendants. *** Consequently, when the wrongful act which is the subject-matter of the present litigation was committed by the defendants' employe, the defendants became legally liable for a period of 12 calendar months to compensate the next of kin of the deceased for the pecuniary injury resulting to them from his death, and were exempt from such liability at the expiration of that period. Their right to complete exemption at the end of the time specified was as complete as the right of the plaintiff to hold them responsible in damages during the running of that time, and the right of each became vested when the wrongful act occurred.”

The rule is well stated in the following quotation from Link v. Receivers of Seaboard Air Line Ry. Co., 4 Cir., 73 F.2d 149, 151:

“It is true that statutes relating to practice and procedure generally apply to pending actions and those subsequently instituted, although the cause of action may have arisen before. (Citing cases.) But these are not mere procedural provisions of statutes with which we are dealing. The statute of 1882, as well as that of 1930, creates in one who obtains a judgment against a railroad company a right superior to the rights of mortgagees in the railroad property, but only upon condition that the action for obtaining the judgment is instituted within the time limited by the act. The condition thus prescribed is not, therefore, a mere regulation of procedure, but a condition annexed to the enjoyment of the right, and is not at all different from similar provisions in statutes creating a cause of action. As to these, it is well settled that failure to bring the action within the time limited destroys the right itself, and not merely the remedy. (Citing cases.)

“The change made by the statute of 1930, therefore, was not a mere change in procedure, but a change affecting...