353 So. 2d 797 | Ala. Civ. App. | 1977
This is a workmen's compensation case. The sole issue for review is whether or not fraud tolls the one year period of limitation set out in Title 26, Section 296, Code of Alabama 1940 (Recomp. 1958).
Section 296 is as follows:
"In case of a personal injury all claims for compensation . . . shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable . . . or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 304 of this title. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. 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."
The trial court concluded as a matter of law that fraud was not one of the exceptions to the enforcement of section 296 and held that fraud would not toll the running of the one year period of limitation prescribed by the workmen's compensation act.
The employee says in support of his contention that proven fraud will toll the running of the one year limitation provision of section 296, that the Alabama Supreme Court inCentral of Georgia Ry. v. Ramsey,
We do not consider the Ramsey case to be apt authority in the case at bar for the reason that there the supreme court specifically construed a federal statute and in the process of doing so relied on decisions of the federal courts construing that statute. Two federal cases were cited as authority:Scarborough v. Atlantic Cast Line Ry.,
"Despite some expressions of dissatisfaction with the results reached by a rigid application of the rule, it has generally been held that where a statute creates a new cause of action, and provides that such causes of action must be brought within the time specified in the statute, the time limitation was considered as a part of the newly created right, and could not be tolled or suspended for any reason not expressly excepted in the statute. See 15 A.L.R.2d pp. 501 through 527."
275 Ala. 14 ,151 So.2d 730 .
The employee also contends that Hatch v. Black Diamond CoalMining Co.,
In answer to the employee's argument, the employer says that fraud is not one of the stated exceptions in section 296 and consequently it cannot toll the running of the one year period of limitation.
The employer's theory is that the statute of limitation in the present case is more than a remedy; it is a condition to the exercise of the right given to the employee by the workmen's compensation act. If the right of action is not exercised within the period of limitation, then the right is extinguished and the employee is forever barred from reaping its benefits.
In support of its theory, the employer not only cites cases from other jurisdictions but relies heavily on the Alabama caseB.F. Goodrich Co. v. Parker,
"As we view the question now being considered, we are not dealing merely with an amendable defect, but rather with a question of jurisdiction. This for the reason that the rights our Workmen's Compensation Law created are rights not existing at common law. The act fixed the time within which it could be enforced. It is a limitation on the right itself and not alone upon the remedy. The period within which such statutorially (sic) created rights must be asserted is of the essence of the cause of action, and is to be sustained by both averment and proof. Parker v. Fies and Sons,
243 Ala. 348 ,10 So.2d 13 ; Nicholson v. Lockwood Greene Engineers, Inc.,278 Ala. 497 ,179 So.2d 76 . The time limitations within which such actions must be brought is a condition precedent to the right to maintain such action and is jurisdictional."282 Ala. at 155 ,209 So.2d at 650.
This court in Hale v. United States Fidelity and GuarantyCo.,
Having so decided, we feel we would be remiss if we did not say that other jurisdictions have held that fraud does toll the running of the time limitation provision in a workmen's compensation case. See Pacific Employers Ins. Co. v. IndustrialAccident Com'n.,
Recognizing that this jurisdiction has adopted a strict construction of section 296, nevertheless we are concerned that such a construction of this provision in the workmen's compensation law can lead to fraud being practiced by an employer on an employee, thereby defeating the employee's access to the benefits authorized by the legislature. Such a result is to us contrary to the rule of liberal construction our courts apply to other sections of the act. Gilmore v. RustEngineering Co.,
For the reasons given, the judgment of the trial court is affirmed.
AFFIRMED.
HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.