Ames v. Dept. of Labor Industries , 176 Wash. 509 ( 1934 )

I dissent from the views expressed in the decision. An injured workman, within the workmen's compensation act, has no right of action against his employer, but is entitled to compensation under and according to the terms of the act. As stated in the decision, Rem. Rev. Stat., § 7697, which is a part of the act, provides:

"Any claimant, employer or other person aggrieved by any such order, decision or award must, before he appeals to the courts, serve upon the director of labor and industries, by mail or personally, within sixty days from the day on which such copy of such order, decision or award was communicated to the applicant, an application for rehearing before the joint board of said department, . . ."

But for this provision in the act, a claimant could not appeal to the courts. Clearly, then, whether as a statute of limitation or condition precedent, a claimant must, within sixty days from the date of the objectionable order against him, apply for a rehearing before the joint board of the department before he can appeal to the courts. Admittedly, that was not done in this case, and I understand it to be declared by the decision that the legal effect of his failure, attributable to the insanity of the claimant, can and must be overcome or relieved against by the application of equitable principles in protection of an established public policy to the effect that the legislature never intended the legal effect of its express language. If this were a question of good morals, then, of course, there would be no dissension or disagreement, but the question presented is one of power in the court to entertain an appeal to the courts.

If the legislature had wanted or intended to exempt persons under disability of any sort from the force of the sixty-day limitation for appeal to the joint board, it could have easily said so; and, while the courts may declare a law to be unconstitutional for certain reasons, they do not have the power to make a law, nor to repeal, amend or modify an act of the legislature.

The courts, without disagreement, in my opinion, have passed on the question of exemptions in favor of persons under disability from the running of such statutes, holding that such exemptions do not exist unless specially stated in the act.

In Collier v. Smaltz, 149 Iowa 230, 128 N.W. 396, Ann. Cas. 1912C, 1007, discussing the subject with reference to the statutory limitations for the commencement of actions concerning real estate, the court said:

"The act contains no exemption in favor of insane persons, and it is elementary that, save when otherwise provided by the Legislature, no such exemption exists. Vance v. Vance,108 U.S. 514 (2 Sup. Ct. 854, 27 L. Ed. 808); Campbell v. Long, 20 Iowa 387; Shorick v. Bruce, 21 Iowa 307."

In Alvarado v. Southern Pac. Co., 193 S.W. (Tex.Civ.App.) 1108, the claimant's suit arose under the Federal Employers' Liability Act. The decision, tersely stated in the syllabus, was as follows:

"Under federal Employers' Liability Act April 22, 1908, c. 149, § 6, 35 Stat. 66 (U.S. Comp. St. 1913, § 8662), providing that no action shall be maintained under the act unless commenced within 2 years from the day the cause of action accrued, there being no exception in the act extending the time within which suit may be brought by an employe in the event of his insanity, the courts are not at liberty to apply state statutes extending or tolling the time for filing a suit because of insanity, so that, where the injuries to a railroad employe engaged in interstate commerce rendered him insane, his cause of action accrued at the time of the injury, and a suit could not be maintained under the act by his next friend more than 2 years after the date of the injury."

37 C.J., Limitations of Actions, p. 1024, § 432, says:

"Limitations run against every one without regard to the personal disability of insanity, unless there is a saving of such cases in the statute."

Upon principle, this question has been decided by former cases of this court, to which the present decision, in my opinion, is contrary.

In Born v. Spokane, 27 Wash. 719, 68 P. 386, and Ehrhardtv. Seattle, 33 Wash. 664, 74 P. 827, both arising in cities of the first class, it was held that charter provisions requiring the filing of claims for damages within a specified time as a limitation upon or condition precedent to the right to sue, were excused by showing mental incapacity of the injured person running through the whole of such period. This, upon the manifest theory, later approved by this court, that such city cannot limit its liability by its own charter.

Thereafter, the legislature enacted a law (Laws 1909, p. 627, § 1), providing that:

"All claims for damages against any city or town of thesecond, third or fourth class must be presented to the city or town council and filed with the city or town clerk within thirty days after the time when such claim for damages accrued: . . ." Rem. Rev. Stat., § 9481. (Italics mine.)

The case of Ransom v. South Bend, 76 Wash. 396,136 P. 365, arose under that act of 1909. In that case, the claim was filed seventy-three days after the accident happened, for which delay the excuse of physical and mental disability prior to the filing was alleged. The court held there was no exemption from the limitation contained in the statute, making a clear distinction between the binding force upon the courts of such a provision contained in an act of the legislature as distinguished from one found in the charter of a city. In the following quotation from the decision in that case, I take occasion to italicize certain language to more clearly show what I think to be its decisive and controlling effect upon the question in the present case, as follows:

"We have held that the thirty-day limitation in this statute is mandatory; that the statute is clear, definite, and precise in its terms; that a compliance with its provisions is `a condition precedent to the bringing of the action,' and that the giving of the notice `in substantial compliance with the statute must be alleged and proven.' Collins v. Spokane,64 Wash. 153, 116 P. 663, 35 L.R.A. (N.S.) 840; Wolpers v.Spokane, 66 Wash. 633, 120 P. 113; Benson v. Hoquiam,67 Wash. 90, 121 P. 58. We have also held that physical or mental incapacity, running through the entire period fixed by a citycharter for presenting claims against the city, excuses a compliance with the charter. Born v. Spokane, 27 Wash. 719,68 P. 386; Ehrhardt v. Seattle, 33 Wash. 664, 74 P. 827.

"The appellant invites us to apply this rule of interpretation to the statute. This we cannot do without trenching upon powersvested exclusively in a coordinate branch of the stategovernment. When the lawmaking branch of the government hasspoken, the courts may interpret, but cannot add to or take from,the clear and unambiguous meaning of the law. To do so would belegislation rather than interpretation. The policy, expediency, and wisdom of a statute are legislative and not judicial questions. Point Roberts Fishing Co. v. George Barker Co.,28 Wash. 200, 68 P. 438.

"In State v. Carey, 4 Wash. 424, 30 P. 729, addressing itself to this question, the court said:

"`Yet, conceding the right of the legislature to legislate upon the subject, the wisdom of the act, its reasonableness or unreasonableness is a question for legislative discretion, and not for judicial determination. Judge Cooley says, in his work on Constitutional Limitations (5th ed., page 201): "The judiciarycan only arrest the execution of a statute when it conflicts withthe constitution. It cannot run a race of opinions upon points ofright, reason and expediency with the lawmaking power."'

"Courts of other jurisdictions have construed similar statutes, varying slightly in phraseology, in harmony with our construction of this statute. Schmidt v. Fremont, 70 Neb. 577,97 N.W. 830; Ellis v. Kearney, 80 Neb. 51, 113 N.W. 803;McCollum v. South Omaha, 84 Neb. 413, 121 N.W. 438; Touhey v. Decatur,175 Ind. 98, 93 N.E. 540, 32 L.R.A. (N.S.) 350; Huntington v. Calais,105 Me. 144, 73 A. 829; Daniels v. Racine, 98 Wis. 649,74 N.W. 553; Hay v. Baraboo, 127 Wis. 1, 105 N.W. 654, 115 Am. St. 977, 3 L.R.A. (N.S.) 84; Crooker v. Hartford, 66 Conn. 387,34 A. 98; Fort Worth v. Shero, 16 Tex. Civ. App. 487,41 S.W. 704; Trost v. Casselton, 8 N.D. 534, 79 N.W. 1071; Gribben v.Franklin, 175 Ind. 500, 94 N.E. 757.

"In the Schmidt, McCollum and Ellis cases, it was held that incapacity, caused by the injury which formed the basis of the suit, did not excuse a failure to give the notice within the time prescribed by the statute. In Davidson v. Muskegon,111 Mich. 454, 69 N.W. 670, and Winter v. Niagara Falls, 190 N.Y. 198,82 N.E. 1101, 123 Am. St. 540, the same rule was applied to infants. In Morgan v. Des Moines, 60 Fed. 208, the statute was held a bar to a suit by an infant four years of age who had not complied with the terms of the statute. In the McCollum case the court said:

"`The effect of the holding is that the legislature may fix alimitation applicable to all, and that exceptions omitted fromthe statute do not exist.'

"In the Ellis case, the same view is expressed in the following language: `It is not the province of the courts tomake the law, or read into it exceptions not intended by thelawmakers.' In the Schmidt case, the court observed that ithad no power to `engraft an exception upon it [the statute] byconstruction.'"

That case was followed and the doctrine restated in Haynes v.Seattle, 83 Wash. 51, 145 P. 73, which arose in Seattle after the legislature of 1909, by Laws of 1909, chapter 83, p. 181, Rem. Rev. Stat., §§ 9478-9480, gave to this provision of the charters of cities of the first class the force and dignity ofan act of the legislature.

The distinction between the two lines of cases, those falling under the statute and those covered by a city charter, is clearly pointed out in Benson v. Hoquiam, 67 Wash. 90, 121 P. 58, to the effect that the limitations arising under the statute are mandatory, while those under acity charter proceed upon the theory that a city cannot limit its liability by its own charter provision.

It will be kept in mind that the limitation of sixty days within which to apply for a rehearing before the joint board is not only a limitation but a condition precedent to an appeal to the courts, and that it is not a rule, order or resolution of any municipal corporation or board or commission, executive or administrative, but is an act of the legislature which contains no exception whatever, and is binding alike upon the department in its administration of the act and upon the courts with respect to appeals.

As I read the cases cited by the decision herein, they are not applicable to the present inquiry. They were ordinary actions growing out of private transactions, and involved no statute.Pollock v. Horn, 13 Wash. 626, 43 P. 885, 52 Am. St. 66, was a collateral attack on a judgment given against Pollock, while he was insane, on an attachment bond executed by him when he was sane. It was stated in the opinion, however:

"It is not to be concluded that the lunatic or his estate is without remedy, but the remedy is an action in equity to set aside a judgment, if the judgment has been fraudulentlyobtained." (Italics mine.)

The result was:

"The complaint in this case failing to allege any fraud, and none appearing in the trial of the cause, . . . the judgment will therefore be affirmed."

In Haines v. West, 101 Tex. 226, 105 S.W. 1118, 130 Am. St. 839, it was held that a former judgment against Mrs. Haines, if rendered against her while insane, "was not void and would bind her in this suit."

In Stigers v. Brent, 50 Md. 214, 33 Am. Rep. 317, the decision was that lunacy was no sufficient ground, in equity, for declaring a judgment for a debt contracted during sanity, to be a nullity.

The present proceeding is a plain, straight appeal at law to the superior court, under the terms of the statute, from an administrative board which, according to the record, only complied with the mandatory terms of an act of the legislature against which there are no exemptions or exceptions in favor of the claimant. If it be true, as it must be admitted, that the legislature can provide procedure and rights with respect to the administration of this fund, it follows that neither the courts, sitting in equity or otherwise, nor the department can make any changes in such statutes because of what they may think to be deficiencies in the terms of the act, and, in my opinion, the courts are without jurisdiction in the premises.

MAIN and STEINERT, JJ., concur with MITCHELL, J.