Summary
In Larry v. Taylor, 227 Ala. 90, 149 So. 104, the court stated that the chief contention was that the statute of limitations of one year as provided in Section 7570, Code of 1923, was not a bar to an action by dependent minor children of tender years at the time of their father's death.
Summary of this case from Nicholson v. Lockwood Greene Engineers, Inc.Opinion
6 Div. 325.
June 15, 1933.
Certiorari to Circuit Court, Jefferson County; J. Russell McElroy, Judge.
W. Emmett Perry and Cæsar B. Powell, both of Birmingham, and James O. Tolbert, of Montgomery, for appellants.
The statute of limitations of one year was tolled or suspended by reason of the prior proceeding in which the employer admitted liability, suggested claimants, and made payment. Code 1923, § 7570; Krenz v. Krenz Oil Co., 186 Minn. 312, 243 N.W. 108; Glassman v. Radtke, 177 Minn. 555, 225 N.W. 889; Dime Trust Safe Dep. Co. v. Phila. Reading Coal Iron Co., 78 Pa. Super. 124; Curtis v. Slater Const. Co., 194 Mich. 259, 160 N.W. 659; Ex parte Central I. Coal Co., 212 Ala. 367, 102 So. 797; Moss v. Standridge, 215 Ala. 237, 110 So. 17; Wilson v. Red River L. Co., 2 Cal. I. A. C. Dec. 807; 1 Honnold, Workmen's Comp. 767. Section 7570 is arbitrary in denying to minors an exception to the statute of limitations of one year, rests upon no reasonable basis, and is violative of sections 1, 6, and 22 of the Constitution of Alabama, and the Fourteenth Amendment to the Constitution of the United States. Mono Power Co. v. Los Angeles, 33 Cal.App. 675, 166 P. 387; Barrington v. Barrington, 206 Ala. 192, 89 So. 512, 17 A.L.R. 789; 6 R. C. L. 372; State ex rel. v. Erickson, 159 Minn. 287, 198 N.W. 1000; Vietti v. George K. Mackie Fuel Co., 109 Kan. 179, 197 P. 881; O'Connell v. Menominee Bay Shore Lumber Co., 113 Mich. 124, 71 N.W. 449; 12 C. J. 1139; McDonald v. Spring Valley, 285 Ill. 52, 120 N.E. 476, 2 A.L.R. 1359; Cooley, Const. (7th Ed.) 558; South N. A. R. Co. v. Morris, 65 Ala. 193; Woco Pep Co. v. Butler, 225 Ala. 256, 142 So. 509; Morgan v. Reed, 2 Head (Tenn.) 277; Smith v. Warden, 80 Ky. 608; Quong Ham Wah Co. v. Industrial Accident Comm., 184 Cal. 26, 192 P. 1021, 12 A.L.R. 1190; Sutton v. State of Tennessee, 96 Tenn. 696, 36 S.W. 697, 33 L.R.A. 589. If the court so holds, said statute can be upheld in all other respects. Williams v. Board of Revenue, 123 Ala. 432, 26 So. 346; State v. Carter, 174 Ala. 266, 56 So. 974; State v. Montgomery, 177 Ala. 212, 59 So. 294; State v. Erickson, 159 Minn. 287, 198 N.W. 1000.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellees.
Appellants' rights to successfully maintain their petition is precluded by the statute of limitations in section 7570, Code. Ex parte Sloss-Sheffield Steel Iron Co., 207 Ala. 531, 93 So. 425; Caldwell v. J. A. Kreis Sons (Mo.App.) 50 S.W.(2d) 728. They cannot accept benefits conferred by the Workmen's Compensation Act and at the same time challenge its constitutionality. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Baldwin v. Kouns, 81 Ala. 272, 2 So. 638; Booth Fisheries Co. v. Ind. Comm., 271 U.S. 208, 46 S.Ct. 491, 70 L.Ed. 908; Battle Creek Coal Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18; Town of New Holstein v. Industrial Commission, 191 Wis. 93, 209 N.W. 695; Utah Copper Co. v. Ind. Comm., 57 Utah, 118, 193 P. 24, 13 A.L.R. 1367; Thomas v. Morton Salt Co., 253 Mich. 613, 235 N.W. 846; Oren v. Swift Co., 330 Mo. 869, 51 S.W.(2d) 59.
The proceeding is under the Workmen's Compensation Law to recover the compensation due the dependent wife and minor children of the employee in case of death of the employee. All the conditions entitling plaintiffs to compensation were found in their favor by the trial court upon agreed facts for the purposes of that trial; but compensation denied upon plea of the statute of limitations of one year. Code, § 7570.
The death of the employee, Steiner Larry, occurred April 9, 1928. This action was begun under Code, § 7578, on October 12, 1932.
The chief contention here is that the statute of limitations of one year is not a bar to an action by dependent minor children of tender years, one ten, the other seven years of age at the time of their father's death. The provision of section 7570 in this regard reads: "In case of physical or mental incapacity, other than minority of the injured person or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases."
Admittedly minority is excluded from the exception therein declared.
This provision making the statute of one year applicable to such minors is challenged as arbitrary, discriminatory, and void because in contravention of the Fourteenth Amendment of the Federal Constitution and kindred sections of the Constitution of Alabama, such as sections 1, 6, and 22.
Suffice to say the entire scheme of the Workmen's Compensation Law awarding compensation to minor dependents is to furnish them present maintenance; is limited to those under eighteen years of age, except when physically or mentally incapacitated. Code, § 7552; Ex parte Cline, 213 Ala. 599, 105 So. 686. It is not contemplated that proceedings shall or may be delayed until the disability of minority has passed, and presumably the period of dependence.
In keeping with this policy, minor employees are, by our statute, made sui juris, or quasi sui juris, subject to the power of the court to safeguard their interests by guardianship (Code, § 7549), and to relieve from oppressive settlements generally (Code, § 7550).
The provision of the Workmen's Compensation Law is made to apply to minors employed in violation of child labor laws. Code, § 7539; Ivey v. Railway Fuel Co., 218 Ala. 407, 118 So. 583.
By amendment of the statute, double compensation is now awarded where the minor is employed in violation of law. General Laws 1931, p. 415.
Maybe in some cases the statute should make more direct provision for the protection of children of tender years in giving notice required by section 7568, and bringing suit under section 7570, but, with all the legal, industrial, and social agencies of our day, it is not to be presumed such dependent children will be friendless.
In this case there is a mother, authorized by law to receive compensation for them. She could have sued within one year, and not after four years. Code, § 7554; Ex parte Central Iron Coal Co., 212 Ala. 367, 102 So. 797.
We are unable to see any sound basis for declaring this case without the general rule that a legislative act creating a claim, not theretofore existing, may prescribe the conditions and procedure under which such right is to be effectuated. In general, one cannot claim the benefits of an act and at the same time challenge its constitutionality. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.
We conclude the constitutional point raised cannot be sustained.
Appellants also rely upon certain exceptions to the one-year statute of limitations (Code, § 7570), namely, "unless within one year after the accident the parties shall have agreed upon the compensation payable," and "unless within one year after such death one of the parties shall have filed a verified complaint as provided in section 7578 hereof."
The basis of such contention is this: Within one year another and separate suit was brought on behalf of another woman and children, claiming to be the dependent wife and minor children of the same employee. It was there agreed that compensation was due, and the amount thereof. After bringing in some suspected claimants, not including present plaintiffs, who, so far as appears, were unknown, the trial court gave judgment awarding compensation to the plaintiffs in such suit, and the same was paid prior to the institution of the present suit.
Without discussion, we hold no agreement in that proceeding with other parties that compensation was payable, nor the institution of that suit, is available to these plaintiffs to remove the bar of the statute of limitations.
No such legislative intent appears.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.