Bolduc v. Somersworth Shoe Co.

• Full Citation: Bolduc v. Somersworth Shoe Co., 97 N.H. 360, 89 A.2d 538 (N.H. 1952)
• Decision Date: 03 June 1952
• Citation: 89 A.2d 538,97 N.H. 360
• Parties: BOLDUC v. SOMERSWORTH SHOE CO., Inc., et al.
• Court: New Hampshire Supreme Court

Page 538

89 A.2d 538

97 N.H. 360

BOLDUC v. SOMERSWORTH SHOE CO., Inc., et al.

Supreme Court of New Hampshire.

June 3, 1952.

Rehearing Denied July 1, 1952.

Hughes & Burns and Donald R. Bryant, Dover, for plaintiff.

Charles F. Hartnett, Dover, for defendants.

DUNCAN, Justice.

The defendants have consistently maintained that the accident on June 7 never occurred, and that the testimony of the plaintiff concerning it does not warrant a finding to the contrary. This contention is founded primarily upon the evidence that the accident was not immediately reported, and that no other employees of the defendant were aware of its occurrence. The evidence presented an issue of fact for the Trial Court, which was decided adversely to the defendant. It presents no question of law for this Court. The testimony of the plaintiff was not incredible as a matter of law, and the absence of witnesses to the accident was not necessarily inconsistent with the circumstances under which the plaintiff said it occurred. Leonard v. City of Manchester, 96 N.H. 115, 119, 70 A.2d 915. Since there was evidence to warrant the finding for the plaintiff, the motion to dismiss for insufficiency of the evidence was properly denied.

At least eleven of the defendants' seventy-one requests were directed to evidentiary matters considered by the defendants to bear upon the credibility of the plaintiff's testimony concerning the happening of the accident. They included requests for rulings that certain evidence 'must be considered.' The defendants argue that denial of the requests was error because 'there is no evidence that the Court gave any consideration to them.' The findings, rulings and decree contained a statement (to which the defendants likewise excepted) that 'all the factors mentioned in the requests for findings and rulings * * * have been considered.' The argument, citing Smith v. Boston & Maine Railroad, 88 N.H. 430, 434, 190 A. 697, 191 A. 833, seems to be that the Court is required to instruct itself as it might a jury upon the effect of evidence in the case, and to do this in writing. While we do not so understand the office of findings and rulings, the statement that the factors mentioned in them received consideration was sufficient indication that they were not denied. The requests of the type mentioned might have been specifically granted by the Trial Court, without running contrary to findings and rulings made. Others sought findings which were not required by the evidence, and would have been inconsistent with findings actually made. The exceptions to the denial of requests 5 through 15 are overruled.

One of the defendants' major contentions is that the petition should have been dismissed because the plaintiff failed to give seasonable notice of the accident and resulting prejudice to the employer conclusively appeared. In this connection the defendants excepted to the finding that 'notice was given as soon as practicable,' and to the following findings and rulings: 'The defendant claims that it was prejudiced in three ways: by inability to prepare its case, by inability to secure medical information and by inability to furnish adequate treatment. The Court finds that the defendant was not unduly prejudiced in the preparation of its case or in the securing of medical information. Its claim that an earlier report would have given it an opportunity to furnish earlier medical attention and possibly save the leg is similar to other claims which are frequently made as a matter of hindsight. The duties imposed on the plaintiff cannot be established in the light of how things look after everything is over, but must be established under the circumstances as they existed at the time. The plaintiff acted reasonably and sent notice reasonably on June 13, 1949. He did not except any such result from what appeared to be a minor injury. His action in reporting through his son on June 13 being reasonable, the report on that date cannot be called prejudicial to the defendant and thereby eliminate the plaintiff from a right to recovery.'

The statute provides that no proceedings for compensation shall be maintained 'unless notice of the accident as hereinafter provided has been given to the employer as soon as practicable after the happening thereof.' R.L., c. 216 § 14, as amended. Such a notice must 'apprise the employer of the claim for compensation.' Section 16. Section 15 is as follows: '15. Defective Notice. No want, defect or inaccuracy of a notice shall be a bar to the maintenance of proceedings unless the employer proves that he is prejudiced by such want, defect or inaccuracy.'

The defendants' argument is that it was practicable to give notice of the accident at any time during the three days immediately following that of the accident, and they rely upon Malloy v. Head, 90 N.H. 58, 4 A.2d 875, 877, 123 A.L.R. 941, for the proposition that apparent triviality of the injury does not excuse prompt notice. The principles adopted in the Malloy case are not controlling here. The Court was there concerned with a requirement of an insurance contract that notice of an accident be given 'as soon as is reasonably possible thereafter.' We are here concerned with construction of remedial legislation in the light of its recognized purpose to afford 'to the employee * * * a certain and sure remedy applicable to all cases of injury not due to his willful misconduct.' Mulhall v. Nashua Mfg. Company, 80 N.H. 194, 199, 115 A. 449, 453. See also, Newell v. Moreau, 94 N.H. 439, 442, 446, 55 A.2d 476. In Hines v. Norwalk Lock Company, 100 Conn. 533, 124 A. 17, a comparable statutory requirement was held to place no duty upon the employee to give notice of an accident until incapacity resulted. The Court pointed out that to require notice of all accidents, however trivial, from which no incapacity results would impose an unreasonable burden upon both employer and employee, not contemplated by the Legislature. See also, Rosa v. George A. Fuller Co., 74 R.I. 215, 60 A.2d 150, and cases collected in Anno. 145 A.L.R. 1263, 1275.

We are here concerned with the requirements of the statute, and not of the defendants' rules. The notice required by section 14 of our statute is notice of an accident which gives rise to a claim for compensation. Section 16, supra. The statute shows no purpose to require notice before the employee has reason to anticipate disability which will give rise to such a claim. The evidence warranted the findings that the plaintiff acted reasonably, and gave notice to the defendants as soon as it was reasonably apparent that incapacity would result from what first appeared to be a minor injury.

Section 15 indicates that proof of prejudice resulting from a defective notice may bar the plaintiff's action; but before such prejudice may be established, it must first appear that the notice was defective. Prejudice which results from justified delay in giving notice is no bar to the claim. A notice which meets the requirement of section 14--that it be given 'as soon as practicable' after the happening of the accident--is not defective as to the time of giving, within the meaning of section 15. The finding that the plaintiff's notice was seasonably given established its freedom from any defect of untimeliness. There being no such defect, the defendants could not be held prejudiced by it. The Court correctly ruled that notice given on June 13 could not 'be called prejudicial to the defendant' because seasonably given.

Before an employer...