Bloomfield v. November (In re Appeal of State Indus. Comm'n)

• Decision Date: 23 April 1918
• Citation: 119 N.E. 705,223 N.Y. 265
• Parties: BLOOMFIELD v. NOVEMBER et al. Appeal of STATE INDUSTRIAL COMMISSION.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 265

119 N.E. 705

BLOOMFIELD

v. NOVEMBER et al.Appeal of STATE INDUSTRIAL COMMISSION.

Court of Appeals of New York.

April 23, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings by Ella Bloomfield for Workmen's Compensation, opposed by S. November, employer, and the Zurich General Accident & Liability Insurance Company, Limited, insurance carrier. From an order of the Appellate Division (167 N. Y. Supp. 975), reversing an award in favor of the claimant, the State Industrial Commission appeals. Affirmed.

See, also, 219 N. Y. 374, 114 N. E. 805,172 App. Div. 917,156 N. Y. Supp. 1116,173 App. Div. 924,157 N. Y. Supp. 1118.

Cardozo, J., dissenting.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for appellant.

John N. Carlisle, of Albany, for respondents.

HISCOCK, C. J.

The claimant has been awarded a substantial sum as compensation for injuries alleged to have been received while in the employ of the defendant November. It is claimed and has been found that while in the discharge of her duties as a cloak model her finger was pricked by a pin, and that therefrom resulted infection and loss of the use of a finger and serious injury to the wrist.

[1] The case has displayed unquestioned features which might well have challenged the incurable suspicion of the commission. A trivial injury is said to have given rise to serious consequences; the claimant concededly has made statements denying the existence of facts upon which a claim could be predicated; no notice of injury as provided by statute was ever served, and no claim under the statute was made until, after the expiration of nine months, it was quickened into activity by the stimulating advice of claimant's brother, who was connected with the Industrial Commission. Of course the findings which have been made disregarding these circumstances are binding upon us, and the circumstances themselves are mentioned simply for the purpose of indicating that this is not a case where the respondents should be lightly deprived of their rights on the theory that the claim against them rests upon a foundation of undisputed evidence and is surrounded by an atmosphere of undoubted good faith.

The question involving the rights of the respondents which survives upon the findings that have been made is the one whether claimant's conceded failure to serve a written notice of her claim as provided by the statute has been excused on the ground that the respondents were not injured thereby. There is no finding or evidence that this failure is excused under the statute because it was impracticable to give such notice. The only excuse which has been found for the default is the one that the employer and the insurance company were not prejudiced by such failure.

[2][3] This question is not a new one in this case. It was presented upon a former appeal. Then an award had been made, although it appeared that no written notice had been given, and although no finding had been made which excused such failure upon either of the grounds provided by the statute. Under those circumstances we reversed the award and remitted the case to the Industrial Commission in order that it might make findings upon this subject. Matter of Bloomfield v. November, 219 N. Y. 374, 114 N. E. 805. The commission has now made a finding, but we think that it is insufficient to excuse claimant's default or to sustain the award. The finding is that:

‘Ella Bloomfield failed to give to her employer written notice of injury within ten days of disability. Such failure has not prejudiced the employer for the reason that the employer was personally notified at the time of the accident that she had pricked her finger, and that she required some peroxide for application to the injury, and he then had an opportunity to avail himself of all the facts and to give such attention as the occasion might require to the matter, and failed to do so because he was busy and did not consider the matter of any moment.’

It is also found that the swollen condition of claimant's wrist was displayed to an employe who was sent with her wages when she did not return to work, but the finding of this fact is concededly of no importance because there is no finding and no evidence that this employe disclosed to his employer knowledge of what he had seen. The award must stand solely upon the finding that the employer and insurance company were not prejudiced ‘for the reason that the employer was personally notified at the time of the accident that she (claimant)...