Cooper v. Independent Transfer & Storage Company

• Decision Date: 27 February 1933
• Docket Number: 5869
• Citation: 52 Idaho 747,19 P.2d 1057
• Court: Idaho Supreme Court
• Parties: CHARLES EDWARD COOPER, Employee, Respondent, v. INDEPENDENT TRANSFER & STORAGE COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants

19 P.2d 1057

52 Idaho 747

CHARLES EDWARD COOPER, Employee, Respondent, v. INDEPENDENT TRANSFER & STORAGE COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5869

Supreme Court of Idaho

February 27, 1933

WORKMEN'S COMPENSATION LAW-STATUTORY NOTICE OF INJURY-APPEAL TO DISTRICT COURT-INDEPENDENT JUDGMENT.

1. Since employer's "knowledge" of employee's injury is substitute for written notice, employer must have such knowledge within time when written notice should have been given (I. C. A., sec. 43-1205).

2. Workmen's Compensation Act must be liberally construed (I. C. A., secs. 43-902, 70-102).

3. Evidence showed that employer had knowledge of employee's injury within time employee was required to give statutory notice; hence lack of statutory notice did not prevent recovery of compensation (I. C. A., secs. 43-1202, 43-1205).

4. District court reviewing compensation award may enter independent judgment, where both parties had opportunity to present testimony as they desired and had complete hearing on all questions presented (I. C. A., sec. 43-1407).

5. When district court enters independent judgment in compensation case, judgment should provide for notification to Accident Board thereof, and direct it to enter award accordingly (I C. A., sec. 43-1407).

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. A. O. Sutton, Judge.

Proceeding under Workmen's Compensation Law. Appeal from judgment of District Court reversing order of Industrial Accident Board and awarding compensation. Affirmed.

Judgment affirmed, with instructions. Costs awarded to respondent.

Carl H Swanstrom, for Appellants.

It is incumbent upon an employee seeking compensation for injuries sustained in course of employment to report the accident to his employer as soon as practical, and in any event within sixty (60) days. (Sec. 6243, C. S., as amended by chap. 164, at p. 297, Laws of 1929; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Bodah v. Coeur d'Alene Mill Co., 44 Idaho 680, 258 P. 1079.)

On appeal from an order of the Industrial Accident Board the district court is limited to a review of questions of law. (Sec. 6270, C. S., as amended by chap. 222, Laws of 1931, sec. 7, at p. 439; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654.)

Freehafer & McClure, for Respondent.

The actual knowledge of an injury required by the Workmen's Compensation Act does not mean first hand knowledge, but what would be called knowledge in common parlance. (Allen v. City of Millville, 88 N.J.L. 693, 96 A. 1101.)

BUDGE, C. J. Givens and Holden, JJ., concur. Morgan, J., dissents.

OPINION

BUDGE, C. J.

Respondent, Charles Edward Cooper, a former employee of Independent Transfer & Storage Co., a copartnership, instituted proceedings before the Industrial Accident Board for compensation on account of injuries alleged to have been sustained by him on February 20, 1931, arising out of and in the course of his employment. A hearing was had before the Industrial Accident Board, which made the following findings of fact with reference to said injury:

That on the twentieth day of February, 1931, respondent, together with James W. Stanton, one of his employers, lifted an electric transformer weighing approximately 700 pounds; that it was necessary to lift said transformer a distance of approximately six to eight inches, and to lift it straight up without tilting; that at that time both he and his employer lifted to the utmost, and the claimant felt considerable strain and remarked to his employer that he felt the bones in his back "just grind" and at that time he and his employer compared that "lift" with other "lifts", that the claimant thereafter continued his regular work for his said employers until the third day of April, 1931; that commencing with and during approximately six weeks prior to the time he ceased work for said employers, namely, on April 3, 1931, the claimant commenced to experience pain in his back, which pain bothered him and increased in severity and he had difficulty in getting out of the school bus after his run was made and had some pain in his legs, and that his condition, due to his backache, became such that his employers noticed that he was not as active as he had been; that believing it was only the ordinary backache and strain frequently suffered and experienced by men in that business, neither the claimant nor his employers paid any particular attention to it; that on or about the seventh day of April, 1931, he attempted to do some manual work but on account of the condition of his back was not able; that from said seventh day of April, 1931, until the day of the hearing he has been totally disabled for work on account of his back condition; that the back condition which is the cause of claimant's total disability for work, as above said, is the result of his frequent lifting, loading and straining at heavy objects in the course of his work with the defendants Independent Transfer & Storage Co. and particularly of the lift and strain he made on the twentieth day of February, 1931, and is a personal injury by accident arising out of and in the course of his employment with Independent Transfer & Storage Co.

The board further found (Finding IX) that at no time prior to the twentieth day of June, 1931, did claimant make any claim for compensation or give to his employers or either of them a notice in writing signed by him or by someone else in his behalf, stating the nature and cause of his injury or any notice at all of an injury sustained by him, or gave his employers or either of them any opportunity to provide him with reasonable medical or surgical attention, nor did either of said employers have any knowledge that claimant had sustained or claimed to have sustained a personal injury by accident arising out of and in the course of his employment until they received the written notice and claim filed on June 20, 1931, with the Industrial Accident Board, and that claimant did not affirmatively show that his employers had not been prejudiced by such delay or want of notice. Upon such findings the board entered its order denying respondent compensation.

Upon appeal, the district court adopted the findings of the Industrial Accident Board with the exception of its Finding IX. The district court in its Finding IX found as follows:

"That the claimant, Charles Edward Cooper, at no time prior to the 20th day of June, 1931, made a claim for compensation or gave to the defendants above named, or either of them a notice in writing signed by him, or by someone else in his behalf, stating in ordinary language the time, place, nature and cause of his injury, but that claimant's employer had knowledge of the accident as described in the foregoing paragraphs, and that the employer has not been prejudiced by want of written notice or by delay in giving such written notice."

In other words, both the Industrial Accident Board and the district court found as a fact that respondent suffered an accidental injury growing out of and in the course of his employment. The board, however, found as a fact that respondent had failed to give the statutory notice within the statutory time and had failed to establish by competent evidence that his employers were not prejudiced by failure or delay in giving notice, while, on the other hand, the district court found that respondent had brought himself within the provisions of I. C. A., sec. 43-1205, in that he had shown by sufficient competent evidence that his employers had knowledge of the accident and injury within the spirit and meaning of that section, and awarded compensation.

This appeal is from the judgment of the district court awarding compensation to respondent and reversing the order of the Industrial Accident Board denying compensation.

As we view it, there are two specifications of error that are determinative of the questions involved herein. The first question is: Did the district court err in making and entering its Finding IX? If the record sustains this finding that appellants on and subsequent to February 20, 1931, had knowledge of the accident and the injury resulting therefrom, the judgment must be upheld and the finding of fact to the contrary by the Industrial Accident Board was properly set aside.

The following rules have been announced in connection with the question of knowledge of an employer of an accident and injury sustained by an employee:

In Walkden's Case, 237 Mass. 115, 129 N.E. 396, 397, it was said:

"It is settled by Brown's Case, 228 Mass. 31, 116 N.E. 897 and Murphy's Case, 226 Mass. 60, 115 N.E. 40, that because knowledge on the part of the employer is a substitute for the written notice the employer must have knowledge within the time when the written notice should have been given. The word 'knowledge' is used in the statute in its ordinary sense as meaning actual knowledge, but not absolute certainty. While notice of what has happened is not actual knowledge that the employee has been injured, it is such information as men usually act upon in ordinary human affairs. 'Intelligible information of a fact, either verbally or in writing, and coming from a source which a party ought to give heed to, is generally considered as notice of it, except in cases where particular forms are necessary.' George v. Kent, 89 Mass. 16, 7 Allen 16, 18. "

Also it was said in Allen v. City of Millville, 87 N.J.L. 356, 95 A. 130.

"The next question is whether Kates had actual knowledge. He did not in the sense that he saw the injury and knew of it first hand, so that he could properly testify as a...