Bremner v. Marc Eidlitz & Son, Inc.

• Decision Date: 16 July 1934
• Citation: 118 Conn. 666,174 A. 172
• Parties: BREMNER et al. v. MARC EIDLITZ & SON, Inc., et al.
• Court: Connecticut Supreme Court

174 A. 172

118 Conn. 666

BREMNER et al. v. MARC EIDLITZ & SON, Inc., et al.

Supreme Court of Errors of Connecticut.

July 16, 1934

Appeal from Superior Court. New Haven County; Earnest C. Simpson Judge.

Proceeding for compensation under the Workmen's Compensation Act by Alexander Gordon Bremner, employee, opposed by Marc Eidlitz &amp Son, Incorporated, employer, and another. From a judgment sustaining a ruling of the Compensation Commissioner for the third district, dismissing the claim, claimant's testatrix, substituted as plaintiff pending appeal to the Superior Court, appeals.

Judgment set aside, and case remanded, with direction.

Frank W. Daley, William T. Holleran, and Leonard J. Gilhuly, all of New Haven, and Frederick Houde, of Branford, for appellant.

Thomas R. Robinson and Daniel L. O'Neill, both of New Haven, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, AVERY, and PEASLEY JJ.

MALTBIE, Chief Justice.

The compensation commissioner dismissed a claim of Alexander Gordon Bremner for compensation; Bremner appealed to the superior court, and, pending the appeal, died, whereupon his testatrix was substituted as plaintiff. The case comes to us by appeal from the decision of the superior court sustaining the ruling of the commissioner.

Bremner had worked for many years as a stone cutter, and from July, 1928, had been employed by the defendant employer supervising masonry work on certain large buildings it was erecting, and occasionally doing some cutting and fitting of stones. On January 3, 1931, he consulted a doctor because he had a cold and was coughing, and X-rays of his lungs were taken. The doctor found indications of pneumoconiosis, probably associated with a tuberculous process. He prescribed certain medicines, and directed Bremner to take his temperature morning and night and bring in some sputum for examination. On January 17, 1931, Bremner's cough had practically disappeared, he had no more sputum, and had gained somewhat in weight, and the clinic findings were such that the doctor did not believe he had an active tuberculosis, and discharged him. On March 19, 1932, Bremner returned to the doctor, complaining again of a cold and coughing. No change in the chest conditions was found except for signs of a chronic bronchitis. On April 29, 1932, Bremner was forced to stop work because of illness, and was never able to resume. No written notice of a claim for compensation was filed until March 15, 1933. The commissioner found that the first manifestation of a symptom of silicosis evidenced by Bremner was in January, 1931, when he had the cough, was short of breath and raised sputum.

Bremner testified that he believed in January, 1931, even after X-rays had been taken, that he had bronchitis, the symptoms of which are similar to silicosis in its earlier stages, and claimed that he did not actually know at that time he was suffering from silicosis, or any disease due to his occupation, and did not know it until within a year prior to March 15, 1933; and he claimed as matter of law that he was not bound to give written notice of a claim for compensation except within one year from the date when it became actually known to him that he was suffering from an occupational disease. This claim of law the commissioner overruled, and made no ruling upon Bremner's claim of fact that he did not actually know that he was suffering from a disease due to his occupation, until within a year prior to March 15, 1933. The commissioner dismissed the claim because no written notice of a claim for compensation had been given within one year from the date of the first manifestation of a symptom of an occupational disease.

The case presents a question which we have not previously found it necessary to determine. In each of the cases of Farmer v. Bieber-Goodman Corporation and Mockovak v. H. McLachlan Hat Co., 118 Conn. 299, 172 A. 95, the contentions of the plaintiff in this court raised no question as to the time when the first symptom of the occupational disease manifested itself, but the argument proceeded upon the basis of the correctness of the commissioner's finding that there had been such a manifestation at a certain time; and in Rehtarchik v. Hoyt-Messinger Corporation, 118 Conn. 315, 172 A. 353, it was not questioned that the time for giving written notice of a claim for compensation ran from the date when the plaintiff's physician discovered that he was suffering from mercurial poisoning, and it did not appear that the physician had not then informed him that he had that disease.

Section 5245 of the General Statutes provides that, with certain exceptions not material to the issues before us, " no proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation shall be given within one year from the date of the accident or from the first manifestation of...