Frost v. Idaho Gold Dredging Co.

• Decision Date: 26 March 1934
• Docket Number: 6043
• Citation: 31 P.2d 270,54 Idaho 312
• Parties: CLAUD FROST, Appellant, v. IDAHO GOLD DREDGING COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

31 P.2d 270

54 Idaho 312

CLAUD FROST, Appellant, v. IDAHO GOLD DREDGING COMPANY, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 6043

Supreme Court of Idaho

March 26, 1934

WORKMEN'S COMPENSATION ACT-NOTICE OF INJURY-TIME-PREJUDICE-BURDEN OF PROOF.

1. Compensation should have been allowed injured employee for three weeks' disability virtually conceded notwithstanding lack of, or delay in giving, notice of accident to employer, where evidence showed no prejudice to latter or surety (I. C. A., secs. 43-1202, 43-1205).

2. Injured employee, not giving notice of accident to employer as soon as practicable, must show lack of prejudice to employer and surety by delay, to recover compensation, though notice was given within maximum time allowed (I. C. A., secs 43-1202, 43-1205).

3. Statute requiring injured employee to give notice of accident to employer "as soon as practicable" requires that it be given within reasonable time considering all circumstances (I. C. A., sec. 43-1202).

4. Injured employee's ignorance of law requiring notice of accident as soon as practicable held not good excuse for 39 days' delay in giving notice (I. C. A., sec. 43-901 et seq., sec. 43-1202).

5. Absence of evidence as to injured employee's continuing disability after conceded disability period or disability resulting from operation and conflicting evidence as to whether such continuing disability resulted from accident or contracture of hand because of his age justified conclusion that he failed to prove nonprejudice to employer and surety by delay in giving notice of accident (I. C. A., secs 43-1202, 43-1205).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Appeal from judgment of the district court affirming denial of compensation by the board. Reversed in part and affirmed in part.

Judgment affirmed in part and reversed and remanded in part; costs to appellant.

T. L. Martin, for Appellant.

We find no judicial interpretation of the phrase "as soon as practicable," but very closely allied thereto is the phrase "as soon as possible." For instance, where a contract requires performance of an act "as soon as possible," performance with due diligence under circumstances of the case without unreasonable or unnecessary delay will meet the requirements. (Diana Oil Co. v. Cayton, (Tex. Civ. App.) 20 S.W.2d 108, 112.)

A requirement in an insurance policy that notice shall be given the company "as soon as possible" after learning of the loss, means the insured shall give notice within a reasonable time after gaining knowledge of loss. (Fletcher Sav. & Trust Co. v. American Surety Co. of New York et al., 92 Ind.App. 651, 175 N.E. 247.)

James H. Hawley, Jr., and P. C. O'Malley, for Respondents.

Claimant did not give notice of injury in accordance with the law. (I. C. A., sec. 43-1202; Village of Oakley v. Wilson, 50 Idaho 334, 296 P. 185; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758.)

GIVENS, J. Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

Claimant and appellant employed by respondent Idaho Gold Dredging Company as a fireman on a mining dredge, mashed his hand in removing a stick from a wood-pile May 1st or 2d. Appellant in a day or two left such employment, the company having no knowledge of the accident, and about May 5th went to Lewiston, where he had certain fibrous tumors, existing on his hand prior to the accident, removed by a surgical operation. June 11th, appellant served and filed his notice of accident and claim for compensation.

Respondent surety contended that notice had not been given as soon as practicable and that appellant had not shown that it and the employer were not prejudiced by the delay.

The board did not find whether notice was given as soon as practicable, but did find that the fund and employer were prejudiced by the delay in giving notice. The board found appellant had been temporarily totally disabled for three weeks but allowed no compensation.

A physician testified, in behalf of appellant, that from an examination made just before the hearing and after the accident, that two fingers could be voluntarily flexed only fifty per cent due to the accident, and not the operation or the tumorous condition, resulting in probably seventy-five per cent impairment of the hand. Physicians testified for the defense that so far as they could tell at present the mashing of the hand may have aggravated the tumors but that the hand would normally heal from such an accident in two or three weeks and that any impairment now existing was not due to the accident, nor to any aggravation by the accident of the tumorous condition.

There was evidence on the part of both appellant and respondents that the treatment given the hand immediately following the accident was proper and correct, and there is no counter-showing that any other immediate treatment could or should have been given or any showing of prejudice to the employer or the fund so far as the three weeks is concerned, and there is no evidence to show that the appellant was not disabled for such three weeks because of the accident.

Thus there was a showing that there was no prejudice to the respondents as to the three weeks' disability, which it is virtually conceded appellant suffered, and, compensation should have been allowed therefor, because at most the claim should be barred only to the extent the employer was prejudiced by the lack of notice. (Schmidt v. O. K. Baking Co., 90 Conn. 217, 96 A. 963; C. J. Phamphlet, Workmen's Compensation Acts, p. 105, n. 35; Bongialatte v. H. Wales Lines Co., 97 Conn. 548, 117 A. 696.)

Section 43-1202, I. C. A., requires the employee to give notice to the employer of the accident, " . . . . as soon as practicable but not later than sixty days after the happening thereof, . . . . " (of the accident).

Section 43-1205, I. C. A., provides:

" . . . . Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, his agent or representative, had knowledge of the accident, or that the employer has not been prejudical by such delay or want of notice."

The notice referred to is obviously that mentioned in sec. 43-1202, I. C. A., and the words "want of notice" cover the case where no notice of any kind is ever given and therefore would cover any period of time, within or beyond the sixty days mentioned in sec. 43-1202, I. C. A., and there is nothing in either statute to indicate that the exculpatory exceptions in sec. 43-1202, I. C. A., do not likewise operate as to "delay" in not giving the notice as soon as practicable, within sixty days, or beyond the sixty-day period, and is to be considered in connection with either knowledge or lack of prejudice.

This court has previously twice held that the burden of showing lack of prejudice beyond the sixty-day period is on the employee. (Bodah v. Coeur...