Bussey v. Bishop , 169 Ga. 251 ( 1929 )

Hines, J.

In November, 1923, J. C. Bussey filed with the Industrial Commission of Georgia a claim against the Empire Glass and Decoration Company, for compensation for the loss of an eye. An award in his favor was made by the commission. An appeal was taken by the defendant. The superior court affirmed the award of the commission; and in February 1925, the judgment of that court was affirmed by the Court of Appeals. Bishop v. Bussey, 33 Ga. App. 464. It was then discovered that the charter of the Empire Glass and Decoration Company had expired in 1914. At the time of Bussey’s employment, and at the time of the award, F. A. Bishop was the sole owner of the business conducted under the name of Empire Glass and Decoration Company. Bussey applied to the Industrial Commission to amend its award so as to be one against Bishop individually, doing business under the trade-name of Empire Glass and Decoration Company. This application was denied. On September 2, 1925, Bussey filed an equitable petition seeking to Have the award of the commission so amended or reformed as to make it an award against F. A. Bishop, doing business under said trade-name. A decree was entered, amending the award as prayed. Bishop brought the case to this court, which reversed the judgment of the lower court. Bishop v. Bussey, 164 Ga. 642 (139 S. E. 212). After this judgment was made the judgment of the lower court, Bussey, in September, 1927, applied to the industrial Commission for compensation for the loss of his eye, under section 25 of the Georgia workmen’s compensation act, approved August 17, 1920, as amended by the act of August 27, 1925. In his answer Bishop alleged that this application was barred, because Bussey was seeking compensation for an accident which happened more than one year before the filing of his claim with the commission. The answer further set up that so much of section 25 of the act of August 17, 1920, as amended by the act oE August 27, 1925, as provides “that if a claimant proceeds in good faith against a corporation, the charter of which had expired, but which was still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit shall not apply,” is retrospective and violative of paragraph 2 of section 3 of article 1 of the constitution of this ¡átate, which provides that no retroactive law shall be passed. Pending said application Bishop died, and by agreement his wife and sole heir at law was made a party in his stead. On May 11, 1928, the commission made an award in favor of Bussey. Mrs. Bishop appealed, and in the superior court judgment was rendered setting-aside the award and sustaining the appeal. The controlling questions for decision are whether the above provision of section 25 of the act of August 17, 1920, as amended by the act of August 27, 1925, is applicable to a case where the claim for compensation was barred before the passage of the latter act, and whether, if so applied, it would be unconstitutional and void because it violates paragraph 2 of section 3 of article 1 of the constitution of this State, which provides that no retroactive law shall be passed. By section 25 of the compensation act, as originally passed, it was provided that “the right to compensation under this act shall be forever barred, unless a claim is filed with the Industrial Commission within one year after the accident, and, if death results \from the accident, unless a claim therefor is filed with the commission witliin one year thereafter.” Acts 1920, pp. 167, 181. This wfls the statute of limitation in force at the time this accident occurred. The act of August 27, 1925, added to the above statute tjiis exception: “except that if a claimant proceeds in good faith against a corporation, the charter of which had expired, but which was still doing business, he shall have the right to then proceed against the person or persons operating under the corporate name, and the one-year limit shall not apply.”

The first question for decision is whether section 2 of the act of August 27, 1925, should be applied to a claim for compensation which became barred under the act of August 17, 1920, and before the passage of the act of 1925. Retrospective statutes are forbidden by the first principles of justice. Mayor &c. of Savannah v. Hartridge, 8 Ga. 23 (9). Laws prescribe only for the future, and generally have no retrospective operation. Civil Code (1910), § 6; Redd v. Hargroves, 40 Ga. 18, 24. The settled rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires such construction. Moore v. Gill, 43 Ga. 388, 391. A statute of limitation will not be so construed as to affect a cause of action already barred, if such construction can be reasonably avoided. People v. Supervisors, 10 Wend. (N. Y.) 363; Durritt v. Trammell, 11 Ark. 183; Pridgeon v. Greathouse, 1 Idaho, 359; Wright v. Oakley, 5 Met. (46 Mass.) 400; Loring v. Boston, 12 Gray (78 Mass.), 209; Kinsman v. Cambridge, 121 Mass. 558; Ivey v. Blum, 53 Ala. 172 (4) ; Tennant v. Hulet, 65 Ind. App. 24 (116 N. E. 748); Dyer v. Belfast, 88 Me. 140 (33 Atl. 790); 23 Am. & Eng. Enc. Law, 448; Richards v. Carpenter, 261 Fed. 724; Denny v. Bean, 51 Or. 180 (93 Pac. 693); Whittier v. Farmington, 115 Minn. 182 (131 N. W. 1079); Hopkins v. Lincoln Trust Co., 233 N. Y. 213 (135 N. E. 267); Fullerton-Krueger L. Co. v. N. P. Ry. Co., 156 Minn. 20 (194 N. W. 9) ; Dennig v. Mackfessel, 303 Mo. 525 (261 S. W. 55) ; Woart v. Winnick, 3 N. H. 473 (14 Am. D. 384); 37 C. J. 697 (§ 14) e. This principle is-especially applicable where the limitation, when the cause of action accrued, was a part of the right of action itself. La Floridienne, J. Buttbenbach Co., Societe Anonyme v. S. A. L. Ry. Co., 59 Fla. 196 (52 So. 298). The filing of a claim for compensation under the act of 1920 was a condition precedent to the recovery of such compensation. Parmelee v. S., F. & W. Ry. Co., 78 Ga. 239 (2 S. E. 686). An essential element of a. clai/m under the workmen’s compensation law is the filing thereof with ^the Industrial Commission within 12 months from the date of the accident. Chamlee Lumber Co. v. Crichton, 136 Ga. 391 (71 S. E. 673). So unless a statute of limitation expressly or by necessary implication is made applicable to causes of action already barred' when it is passed, it will not be held to apply thereto. The act of 1925 does not expressly or by clear implication apply to causes of action which had become barred at the time of its passage; and for this reason this statute should not be held to apply to the case under consideration.

If this construction of the act of 1925 is incorrect, then for other reasons the applicant for compensation can not succeed. In the first place, the legislature can not revive a right of action that was barred by the statute of limitations in existence prior to the passage of the reviving act. In Calhoun v. Kellogg, 41 Ga. 231, this court held that the acts passed by the legislature during the war, suspending the statute of limitations, which were confirmed by the ordinance of 1865 and the constitution of 1868, were “valid in all cases where the legal statutes in existence at the commencement of the struggle had not fully run in favor of the defendant before the passage of the ordinance of 1865; but they do not revive a right of action that was barred by the legal acts in existence prior to the passage .of the ordinance in 1865.” The Judges divided upon cértain questions involved in the ease, but this division did not relate to the proposition that the legislature can not revive a right of action that was barred by a legal statute of limitation at the time of the passage of the act seeking to revive a barred cause. On that point the Judges seem to have been agreed. The ruling in that case was followed in Goodroe v. Neal, 45 Ga. 109. These decisions of this court are in harmony with the general rule stated in Corpus Juris as follows: “In most jurisdictions the general rule is laid down, without exception or qualification, that the legislature can not remove a statutory bar to a cause of action that has already become complete. In a few jurisdictions, however, due mostly to the influence of the leading ease of Campbell v. Holt, a distinction has been made between a statutory bar operating to invest persons with title to property and a bar which constitutes merely a defense to a personal demand; and it is' accordingly held that in actions on contract, or in any class of actions in which a party does not become invested with title to property by the statutes of limitation, the legislature may by repealing the statute, even after the right of action is barred, restore the remedy and divest the other party of the statutory bar.” 12 C. J. 980 (§ 576), (3), and cases cited in note 19. The reason for the general rule has been stated thus: “The current of decisions in other States treats as a vested right the privilege to plead the statute of limitations when it has run and become a bar to a demand arising either ex contractu or ex delicto. We believe the right of defense is just as important as the right to bring an action. When the right to recover property has been extinguished because of the statute of limitations, we say that the, one who thus holds has a vested right. He acquired it not by a moral but a legal remedy. He is then beyond the power of the legislature to divest him of his rights therein, except by Ms consent or due process of law. From a wise public policy the legislature has declared that a cause of action is destroyed by certain neglect, thus securing a party to withhold his property from subjection to a demand. The legislature has no more right in the one than in the other case, by retrospective legislation, 'to destroy the right to property, each being held by virtue of the statute of limitations. The right to a defense should be held as inviolate as the right of action. When the remedy is destroyed, the right to maintain the action is extinguished.” Lawrence v. Louisville, 96 Ky. 595, 603 (29 S. W. 450, 16 Ky. L. R. 672, 49 Am. St. R. 309, 27 L. R. A. 560).

Besides, the constitution of this State expressly prohibits the passage of retroactive acts. Civil Code (1910), § 6389. In passing upon our own decisions and the decisions of other States, we should ascertain whether there was any constitutional inhibition against retroactive legislation. The constitution of this State adopted in 1798 prohibited the passage of ex post facto laws. This provision applied to criminal laws alone. Wilder v. Lumpkin, 4 Ga. 208; Boston v. Cummins, 16 Ga. 102 (60 Am. D. 714); Well-born v. Akin, 44 Ga. 425. The constitutional inhibition against the passage of retroactive legislation first appeared in the constitution of 1861. McElreath on Constitution, 281, 283. The same provision was embraced in the constitution of 1865. Id. 298, 299. This provision was not embraced in the constitution of 1868. It was again adopted in the constitution of 1877. Civil Code (1910), § 6389. So this constitutional provision is now in force, and was in force when the act of 1925 was passed. Under the constitution of this State, and the decisions of this court, and the courts in most jurisdictions, an act of the legislature which undertakes to revive a cause of action which was barred at the time of its passage violates the provision of our State constitution which inhibits the passage of retroactive legislation. As we have seen, there are decisions to the contrary, and we cite some of them. Campbell v. Holt, 115 U. S. 620 (6 Sup. Ct. 209, 29 L. ed. 483); McEldowney v. Wyatt, 44 W. Va. 711 (30 S. E. 239, 45 L. R. A. 609); Robinson v. Robbins Dry Dock &c. Co., 238 N. Y. 271 (144 N. E. 579, 36 A. L. R. 1310); Danforth v. Groton Water Co., 178 Mass. 472 (59 N. E. 1033, 86 Am. St. R. 495); Dunbar v. B. &c. R. Corp., 181 Mass. 383 (63 N. E. 916).

Most of the decisions which hold contrary to the rulmg that the legislature can not revive a cause of action barred by the statute of limitations are based upon the ruling made in Campbell v. Holt, supra, in which a distinction was made between a statutory bar operating to invest persons with title to property, and a bar which constitutes merely a defense to a personal demand. Mr. Justice Miller, who delivered the opinion of the majority in that ease, gave the following reason for such distinction: “We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the constitution. We certainly do not understand that a right to defeat a just debt by the statute of limitation is a vested right, so as to be beyond legislative power in a proper case.” The reply to this contention by Mr. Justice Bradley, who dissented, and with whom Mr. Justice Harlan concurred, seems to be unanswerable. In his dissent Justice Bradley said: “Now, an exemption from a demand, or an immunity from prosecution in a suit, is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. The two things are correlative ; and to say that the one is protected by constitutional guaranties, and that the other is not, seems to me almost an absurdity. One right is as valuable as the other. My property is as much imperiled by an action against me for money as it is by an action against me for my land or my goods. It may involve and sweep away all that I have in the world. Is not a right of defence to such an action of the greatest value to me ? If it is not property in the sense of the constitution, then we need another amendment to that instrument. But it seems to me that there can hardly be a doubt that it is property. The immunity from suit which arises by operation of the statute of limitations is as valuable a right as the right to bring the suit itself. It is a right founded upon a wise and just policy. Statutes of limitation are not only calculated for the repose and peace of society, but to provide against the evils that arise from loss of evidence and the failing memory of witnesses. It is true that a man may plead the statute when he justly owes the debt for which he is sued; and this has led the courts to adopt strict rules of pleading and proof to be observed when the defence of the statute is interposed.. But it is, nevertheless, a right given by a just and politic law, and, when vested, is as much to be protected as any other right that a man has. The fact that this defence pertains to the remedy does not alter the case. Bemedies are the life of rights, and are equally protected by the constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away. • This court has frequently held that to deprive a man of a remedy for enforcing a contract is itself a mode of impairing the validity of the contract. And, as before said, the right of defence is just as valuable as the right of action. It is the defendant’s remedy. There is really no difference between the one right and the other in this respect.”

We can see no valid reason why a claim which is barred by the statute of limitations can be revived and restored by an act of the legislature in the same jurisdiction. This is especially true, as we have shown, where the statute creating the claim distinctly provides that the claim shall be forever barred if not filed with a given tribunal within the period of limitation named in the statute. The requirement that the claim for compensation shall be filed with the Industrial Commission within one year after the accident is an essential ingredient, and the right ceases and terminates where no action is so commenced at the expiration of that time. Where a statute gives a new right of action not existing at common law, and prescribes the time within which it may be enforced, the time so prescribed is a condition to its enforcement, an element in the right itself, and the right fails with the failure to apply for relief within the allotted time. The rule as stated is one of general application, and is distinguished from the rule applied to statutes limiting the remedy and not the right. Negaubauer v. Great Northern Ry. Co., 92 Minn. 184 (99 N. W. 620, 104 Am. St. R. 674, 2 Ann. Cas. 150) ; 17 R. C. L. 952; Kannellos v. Great Northern Ry. Co., 151 Minn. 159 (186 N. W. 389); Parmelee v. S., F. & W. Ry. Co., Chamlee Lumber Co. v. Crichton, supra.

From what is said, the judgment of the superior court setting aside the award of the Industrial Commission should be affirmed.

Judgment affirmed.

All the Justices concur, except Beck, P. J., and Hill, J., who dissent.