Fiengo v. E. Vitale, Inc.

• Decision Date: 08 June 1939
• Citation: 7 A.2d 385,125 Conn. 559
• Court: Connecticut Supreme Court
• Parties: FIENGO v. E. VITALE, Inc., et al.

7 A.2d 385

125 Conn. 559

FIENGO v. E. VITALE, Inc., et al.

Supreme Court of Errors of Connecticut.

June 8, 1939

Appeal from Superior Court, New Haven County; John R. Booth, Judge.

Proceeding under the Workmen's Compensation Act by Theresa Fiengoclaimant, opposed by E. Vitale, Incorporated, and others.From a judgment sustaining the appeal from a finding and award of the compensation commissioner for the third district in favor of the defendants and affirming the award, the plaintiff appeals.

No error.

George E. Beers and Edward S. Snyder, both of New Haven, for appellant.

John E. McNerney and D. L. O'Neill, both of New Haven, for appellees.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

This is an appeal from a judgment of the Superior Court sustaining a finding and award of the compensation commissioner denying the plaintiff's claim for compensation.The plaintiff was employed as a sewing machine operator in the defendant's garment factory in New Haven.On April 28, 1938, the claimant became ill.A wound upon her right leg had become infected and inflamed causing high temperature and disability.The physicians pronounced her condition cellulitis.The plaintiff claimed her disability had its origin in an injury which she had received on April 11, 1938, in the defendant's plant in the course of her employment.Her claim was that in the noon hour while arranging with a fellow employee some tables and benches provided by the employer for the use of his employees in taking their lunch, a piece of the furniture came in contact with her right leg an inch or two below the knee, causing a wound.She continued to work until April 28th, when she became disabled by the condition of the wound which had become aggravated by infection.There was no controversy between the parties that the plaintiff was in fact disabled upon the 28th of April by reason of the infected condition of her leg.The question at issue was whether her disability resulted from an injury received in the course of her employment of April 11th, as she claimed.

Upon this point the commissioner found these facts: The claimant continued to work at the employer's place until April 28 1938.Prior to this time she did not report any injury to anyone in authority at the plant, nor did she mention her injury to the presiding officer of her union, a fellow employee.The first knowledge the employer had of any claimed injury was on May 16, 1938, when a report was made to the bookkeeper by the presiding officer of the union who had secured the information on May 15th.A union meeting was held the day of the alleged injury.The claimant asked the presiding officer to be excused from attendance but permission was not given.The plaintiff did not give as an excuse the fact that she was injured.The commissioner further found that Dr. Capecelatro of New Haven was called to render treatment and although he saw the claimant on more than one occasion professionally he did not obtain any history of an injury having occurred at her employer's plant.Reasoning that because of lack of notice of injury to the employer until May 18th and lack of history of any injury to the attending doctor and lack of report of an injury to the presiding officer of the union, the commissioner found and concluded that the claimant did not sustain any injury at the plant of her employer on April 11th.

These findings and conclusions were attacked by the claimant on appeal and the evidence taken Before the commissioner has been certified.The plaintiff testified in substance: That in the noon hour, with another woman employed at the plant, Mrs DeStephano, in order that they might have lunch, she attempted to take down a table and bench which had been provided by the employer for...