Meyer, Lawrence J.

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review6-1-1953Workmen's Compensation -- Pendency of Appealas Tolling Statute of LimitationsLawrence J. MeyerFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationLawrence J. Meyer, Workmen's Compensation -- Pendency of Appeal as Tolling Statute of Limitations, 7 U. Miami L. Rev. 594 (1953)Available at: http://repository.law.miami.edu/umlr/vol7/iss4/22MIAMI LAW QUARTERLYcases and the standards to which professional people in general are heldwould seem to belie this construction.It would seem that the immunity afforded by the statute in theinstant case has been extended too far. The privilege (including the usualimmunity statutes) traditionally only protect answers which injure in apenal sense. The effect of the decision has extended the statutory words"penalty or forfeiture" to an area more civil in nature. "The privilegeagainst self-incrimination is a rule of necessity beyond which it shouldnot be extended; its use should not be considered as affording the witnessa certificate of good character."' 1  Thus, in the words of Professor Wig-more, "The privilege cannot be enforced without enforcing crime, butthat is a necessary evil inseparable from it and not a reason for its exist-ence. We should regret the evil and not magnify it by approval."' 6Sheldon J. SchlesingerWORKMEN'S COMPENSATION - PENDENCY OF APPEAL ASTOLLING STATUTE OF LIMITATIONSPetitioner was awarded a workmen's compensation claim, but it wasreversed by the full Industrial Commission. The Circuit Court and theFlorida Supreme Court' affirmed the Commission's order. Thereupon,the petitioner attempted to have the Commission review the cause.Held, the Commission had no jurisdiction because of petition for reviewwas filed over one year after entry of the Commission's original reversal. 2The pendency of the petitioner's appeal from such order did not toll therunning of the limitation statute. Davis v. Combination Awning &Shutter Co., 62 So.2d 742 (Fla. 1953).Since modification and review statutes arc based upon statuton'rights rather than constitutional rights," the courts generally have inter-preted them very strictly. 4 'llcre are two ways in which the courts treatthe time limits in the review statutes-as a jurisdictional question" or as15. Scholl v. Bell, 125 K%. 750, 102 S.W. 248, 261 (1907).16. WIMORFt, ED NcE § 2251 p. 317 (3d ed. 1940).1. Davis v. Combination Awning & Shutter Co., 487 So.2d 436 (lia. 1950).2. FLA. STAT. §§ 440.27, 440.28 (1951).3. City of Miami v. Saco, 156 Fla. 634, 24 So.2d 115 (1945). See FL-. STAT.§440.27 for the statutory conditions that must be complied with in Florida for reviewof a compensation award.4. Winrod v. McFadden Publications, 187 F.2d 180 (7th Cir. 1951); Mitchelv. Town of Niagec, 51 So.2d 198 (Miss. 1951); Thomsen v. Null, 248 S.V.2d 6 (Mo.1952); Wills v. Stineman Coal & Coke Co., 170 Pa. Super. 446, 87 A.2d 104 (1952);Bucker v. Kapp Bros., 110 Pa. Super. 65, 167 Atd. 652 (1933); cf. Mallory v. Pitts-burgh Coal Co., 162 Pa. Super. 541, 58 A.2d 804 (1948). See Young v. McKenzie,46 So.2d 184 (Fla. 1950).5. Manrose v. Miami Shipbuilding Corp., 156 Mba. 402, 23 So.2d 733 (1945);See Concord Realty Corp. v. Romano, 30 So.2d 485 (I-la. 1947).CASES NOTED 595a time limitation question." In the former treatment the courts usuallydetermine that if the time limit has run the Commission has lost juris-diction over the case and cannot even look to the merits involved.7 Inthe latter view the defendant-employer must plead the time period asan affirmative defense, thus giving it the character of a statute of limita-tions." If the time period is treated as a jurisdictional question-suchas it is in Florida-the problem arises as to whether an appeal will suspendthe time limit.Generally, if a party is prevented from exercising his legal remedy bythe pendency of legal proceedings, i.e., an appeal, the time thus consumedshould not be counted against him.9  However, the opposite result isusually reached when the legal proceeding relied upon to toll the statutewas revoked by the party's own acts."' Likewise, when the denial of aclaim has resulted because of some jurisdictional matter going to themerits of the causet (such as a finding that the injury was not a directresult of the employment) -' and the time period has run, so that theCommission's order is final, it has been held that there can be no rehear-lig or review of such order.1 a When there is a choice of remedies, thefact that a party selects one remedy does not toll limitations as againstan action based upon another rcmedy.'' Sonic jurisdictions take the view,however, that until the correctness of an award is finally detennined bythe appellate courts, the limitations period does not begin to run.' 5The instant case seems to follow the doctrine set down by the New6. Sager V. General Electric Co., 269 App. Div. 801, 55 NY.S.2d 138 (3rdDept. 1945); cf. Colonial Insurance Co. v. Industrial Ace. Comm'n, 27 Cal.2d 438,164 P.2d 492 (1945) (the review statute is construed as a statute of limitations whichmay be waived).7. See note 5 srra,8. Colonial Ins. Co. v. Industrial Ace. Comm'n, 27 Cal.2d 437, 164 P.2d 490(1945). To determine tile scope of the local review or modification procedures, togetherwith the time when such relief must be soight, the statutes of the various jurisdictionsmust be consulted.9. State v. Stein, 133 Fla. 241, 83 So, 753 (1938); Whipps v. Kling Bros. &Co., 191 Okla. 163, 127 P.2d 166 (1942); Sec Berkstresser v. State Vorkmen's Ins.Fund 140 Pa. Super. 237, 14 A,2d 225 (1942) (statute was tolled to prevent part;'guilty of misconduct fron1 setting it up as a bar).10. Brink v. Kansas City, 217 S.W.2d 307 (Mo. 1949); Ottenad v. Mount HiopeCemetery & Mausoleumn Co., 176 S.W.2d 62 (\o. 1943); cf, Broyles v. State Per-sonnel Board, 42 Cal. App.2d 303, 108 P.2d 714 (1941); Bostick v. 'Heard, 164 S.W.34 (Tex. 1914).11. Leeper v. Logan Iron & Steel Co., 131 Pa. Super. 172, 198 Atl. 489 (1938);cf. Gleyze v. Hale Coal Co., 149 Pa. Super. 18. 26 A.2d 141 (1942); see Davis v. ArtleyConstruction Co., 154 Fla. 481, 497, 18 So.2d 255, 259 (1944). But see Hlammnond-Knowlton v. United States, 121 F.2d 192, 194 (2d Cir. 1941).12, Stromberg Motor Device Co. v. Industrial Comn'n, 305 I11. 619, 137 N.E. 462(1922); ef. Weymner v. Industrial Comm'n, 404 111. 271, 88 N.E.2d 841 (1949).13. Lopez v. Kennecott Copper Corp., 71 Ariz. 212, 225 P.2d 702 (1950);Lauderdale v, Industrial Comnmn, 60 Ariz. 443, 130 P.2d 449 (19431. But cf \restCast Fruit Co. v. Hackney, 102 Fla. 1060, 136 So. 699 (1931); loward v. Murdock,83 Ga. App. 536, 64 S.E.2d 221 (1951).14. D'Artenay v. Hauser, 138 Cal. App. 39, 31 P.2d 460 (1934); Brink v.Kansas City, 358 Mo. 845, 217 S.W.2d 507 (1949).15. Reid v. Department of Labor & Inhstries, 96 P.2d 492 (Wash. 1939);MIAMI LAW QUARTERLYJersey Supreme Court," stating that a party may prosecute an appealfrom the Commission's finding or seek a review on a change of conditionsor facts, but he is not entitled to both remedies. Although workmen'scompensation statutes are to be construed liberally in favor of the work-man,'7 the Florida Supreme Court was very reluctant about changing themeaning and intent of the legislative act controlling the procedure bywhich the benefits are conferred upon injured employees.This case was on of first impression in Florida. Although thedecision may seem harsh, the case is in line with the many others estab-lishing the procedure for appealing decisions of a commission's order.The Florida attorney should take full cognizance of the consequences ofnot suspending his appeal if he feels he has new facts of a nature sufficientto secure a reversal of the Commission's rejection order.Lawrence J.. MeyerHunter v. Department of Labor & Industries, 68 P.2d 224 (Wash. 1937). But cf.Leschner v. Department of Labor & Industries, 185 P.2d 113 (Wash. 1947); Statecx rel Stone v. Olinger, 108 P.2d 630 (XWash. 1940).16. C. V. Hill Co. v. Drake, 14 N.J. Misc. 95, 182 Al. 480 (Sup. Ct. 1936).17. The Supreme Court of Florida has ruled that the Workmen's CompensationAct should be construed liberally, and all doubts resolved in claimant's favor. SeeS. 1-. Kress Co. v. Burkes, 153 Fla. 868, 16 So.2d 106 (1944); Fidelity & Cas. Co.of New York v. Moore, 143 I-Ia. 103, 196 So. 495 (1940).

Workmen\u27s Compensation -- Pendency of Appeal as Tolling Statute of Limitations

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Workmen\u27s Compensation -- Pendency of Appeal as Tolling Statute of Limitations

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