O'Brien v. Wise & Upson Co., Inc.

• Decision Date: 28 September 1928
• Citation: 143 A. 155,108 Conn. 309
• Parties: O'BRIEN v. WISE & UPSON CO., INC., ET AL.
• Court: Connecticut Supreme Court

143 A. 155

108 Conn. 309

O'BRIEN v. WISE & UPSON CO., INC., ET AL.

Supreme Court of Errors of Connecticut.

September 28, 1928

Case reserved from Superior Court, Hartford County; Newell Jennings, Judge.

Proceeding under the Workmen's Compensation Act by Thomas O'Brien opposed by Wise & Upson Company, Inc., employer and others, in which an appeal by plaintiff from a finding of the Compensation Commissioner for the First District, in favor of the defendant, was taken to and reserved by the Superior Court in Hartford County for the advice of the Supreme Court of Errors. Superior Court advised to dismiss the appeal.

Wheeler C.J., and Haines, J., dissenting.

Cornelius J. Danaher, of Meriden, for appellant.

De Lancey S. Pelgrift, of Hartford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

The plaintiff, who is a carpenter by trade, in getting down from a staging upon which he had been standing, got his foot entangled in a temporary supply pipe which ran to a radiator located near the staging, and wrenched his body. He continued at his work and worked for one week without incapacity. He then consulted a doctor, who found a right indirect inguinal hernia which in his opinion resulted from the wrenching received by the plaintiff as he was getting down from the staging. The commissioner found that the hernia resulted from an injury arising in the course of plaintiff's employment, but that he was not immediately incapacitated for work, and dismissed his claim for compensation. Section 5325 of the General Statutes, as amended by chapter 307, § 4, of the Public Acts of 1927, provides:

" In order to be entitled to compensation for a hernia, the employee shall prove that the hernia resulted from an accidental injury, that inabilty to work immediately followed such accident, that there was not a pre-existing hernia at or prior to the accident for which compensation is claimed and that, within two weeks thereafter, the facts of such accident were communicated to the employer."

The commissioner has not directly found that the plaintiff's hernia arose out of his employment, nor that the facts of the accident were reported to the employer within two weeks, though the former necessarily follows from the other facts found and the latter may be covered by the finding that " the claimant has satisfied all the requirements of the statute except that he was not immediately incapacitated for work." The only question raised by the appeal from the finding of The commissioner and presented upon this reservation is whether The commissioner erred in holding that, because the plaintiff continued to work for a full week after the accident, his inability to work did not immediately follow the accident and he was not therefore entitled to compensation under the section of the statute above quoted.

Our answer to the question presented involves a construction of the statute and more particularly a determination of the precise meaning to be accorded to the word " immediately" as there used. The word " immediately" may be used as an adverb of time, place, or causation, and from its etymology signifies that there is nothing intervening either of time, space, or cause, as the case may be. It is more frequently used as an adverb of time and would ordinarily be so construed unless the context indicates otherwise. In its strict significance as so used it excludes the lapse of any interval of time. As judicially construed, however, it is a word of relative significance, much in subjection to its grammatical connection, and used with more or less latitude according to the subject to which it is applied. McLure v. Colclough, 17 Ala. 89, 100; 4 Words and Phrases, 3407. Where used in connection with human conduct, as in the case of a requirement that a certain thing shall be done immediately, it is generally held to require that the act shall be performed, not instantly, but without unreasonable delay having regard to the nature of the thing to be done. This is well illustrated in the construction given to the provision in an insurance policy that notice of the loss must be given immediately. The notice is sufficient if given within a reasonable time under the circumstances of the case. Lockwood v. Middlesex Mutual Ass'n Co., 47 Conn. 553, 568. Where, however, an event must follow another immediately and no human action is involved, no question of reasonable time in which to act can arise since no action is to be taken. It is simply a question of sequence of events. Such a situation is presented in the construction of a clause commonly appearing in policies of accident insurance which limits the liability of the company to those injuries which " independently of all other causes immediately, wholly and continuously disable" the insured. The word " immediately" in this clause has generally been construed as an adverb of time rather than causation. A majority of the decisions construing such a clause have held that the disability need not follow instantly--that is, without any interval of time--but have disallowed a recovery under the policy unless the accident was followed by total disability without any substantial interval. " It is generally agreed that ‘ immediately’ as so used does not mean instantaneously, or without any interval of time; and is not on the other hand equivalent to the phrase ‘ within a reasonable time,’ but requires that the disability shall result presently and without any substantial interval." 1 Corpus Juris, p. 468. " The word ‘ immediately’ does not mean instantly in the sense that a man shall be totally disabled from the very second of the accident which has caused the injury. A man might be unable to attend to his business from the very moment of the injury, or in another case he might not be disabled for a few minutes or a few hours after the injury. * * * ‘ Immediately’ means presently or without any substantial interval of time elapsing." Fuller on Accident and Employer's Liability Insurance, p. 68. In Kansas it has been held that in such cases disability is immediate when it follows directly from an accidental hurt within such time as the processes of nature consume in bringing the insured to a state of total incapacity. Order of United Comm. Travelers of Am. v. Barnes, 72 Kan. 293, 80 P. 1020, 82 P. 1099, 7 Ann.Cas. 809. In this case the injury arose from the swallowing of a pin, and total disability followed after an interval of twelve days. This case was followed in Erickson v. Comm. Travelers, 103 Kan. 831, 176 P. 989, and Robin v. Central Business Men's Ass'n, 116 Kan. 280, 226 P. 764, 38 A.L.R. 26. In the Erickson Case, the accident happened in September and the disability did not result until the following February, and the court said:

" It may be inferred from the testimony that the disability was reached within the time that the processes of nature take to effect such a development."

In some cases the question of whether the disability was both total and immediate has been left to the jury as one of fact. Except for the Kansas decisions the courts have pretty uniformly held that where the disability did not result for a matter of days after the accident there could be no recovery under such a clause in an accident policy. Williams v. Pref. Mutual Acc. Ass'n, 91 Ga. 698, 17 S.E. 982; Vess v. United Benefit Soc., 120 Ga. 411, 47 S.E. 942; Merrill v. Travelers' Ins. Co., 91 Wis. 329, 64 N.W. 1039; Pepper v. Order of United Comm. Travelers of Am., 113 Ky. 918, 69 S.W. 956, 24 Ky. Law Rep. 723; Masonia Protective Ass'n v. Farrar, 73 Ind.App. 19, 126 N.E. 435; Herwig v. Business Men's Acc. Ass'n (Mo. App.) 234 S.W. 853; Letherer v. U.S. Health and Acc. Ins. Co., 145 Mich. 310, 108 N.W. 491; Preferred Masonic Mutual Acc. Ass'n of America v. Jones, 60 Ill.App. 106; Genna v. Continental Casualty Co., 167 Ill.App. 413; Hefner v. Fidelity & Casualty Co. of N. Y., 110 Tex. 596, 222 S.W. 966; Mullins v. Protective Ass'n, 181 Mo.App. 394, 168 S.W. 843; Laventhal v. Fidelity & Casualty Co. of New York, 9 Cal. App. 275, 98 P. 1075. See, also, for a collection and analysis of the cases notes in 24 A.L.R. 226; 37 A.L.R. 151; 41 A.L.R. 1376; Ann.Cas. 1914D, 380. When a statute gives an action for death by wrongful act only when the person injured died immediately, it was held that while " immediately" was more comprehensive and elastic than instantaneously, there could be no recovery where the death occurred about an hour after the injury. Sawyer v. Perry, 88 Me. 42, 33 A. 660. But the same court in a later case allowed a recovery where total unconsciousness followed immediately upon the accident and continued until death, though the latter did not occur for 75 hours. Perkins v. Oxford, 104 Me. 109, 71 A. 476.

We have given somewhat extended consideration to the decisions construing this clause in accident policies since they present a situation closely analogous to the one before us. In those cases, notwithstanding the familiar rule that provisions of an insurance policy are to be construed most strongly against the insurer which has inserted them in the policy for its own benefit, we have found the courts denying recovery unless the disability resulted without any substantial interval of time. Here, in considering a statute which is not to be construed in favor of either party, we are asked what the Legislature meant when it said that in such cases the employee, in order to recover, must prove that inability to work immediately followed the accident. The language used is so singularly clear and unambiguous that it might well be said to fall within the rule that " it is not allowable to interpret what has no need of interpretation." Lee Bros. Furniture Co. v. Cram, 63 Conn. 433,...