Hines v. Norwalk Lock Co.

• Decision Date: 01 March 1924
• Court: Connecticut Supreme Court
• Parties: HINES v. NORWALK LOCK CO.

124 A. 17

100 Conn. 533

HINES v. NORWALK LOCK CO.

Supreme Court of Errors of Connecticut.

March 1, 1924

Appeal from Superior Court, Fairfield County; William M. Maltbie Judge.

Proceedings under the Workmen's Compensation Act by Lydia Hines for the death of John C. Hines, claimant, opposed by the Norwalk Lock Company, employer. An award of compensation of the compensation commissioner, granting minimum compensation, was vacated on claimant's appeal to the superior court, and claimant's appeal sustained, and the employer appeals. No error.

Edward M. Lockwood, of Norwalk, for appellant.

John Keogh, of South Norwalk, and John T. Dwyer, of Norwalk, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The appellant's decedent in the latter part of September 1921, while engaged in his employment with the defendant, strained himself in lifting a box. He continued on with his work, although suffering from more or less pain following this accident, and because of it became nervous and developed a general run-down condition, which was aggravated by his again straining himself on November 21, 1921, while moving the contents of a room to another part of defendant's factory, and that evening consulted the defendant's physician, and in consequence of his advice was operated upon for double hernia, which resulted in his death on November 29, 1921. The decedent gave no notice to the defendant of the accident of September 21. The commissioner held that it was the duty of the decedent to have given such notice, and that the employer was seriously prejudiced by the failure of the employee to have given him this notice, and adjudged that the defendant pay the claimant the minimum compensation provided by statute. Both plaintiff and defendant appealed to the superior court from this award, and the court dismissed the defendant's appeal, and sustained that of the claimant because of the error of the commissioner in reducing the award by reason of the failure of the decedent to have given notice to the defendant of his injury of September 21.

Assignments of errors 1, 3, 4, 5, and 9 that the court erred " in rendering judgment for the plaintiff," or " in sustaining the plaintiff's appeal," or " in dismissing the defendant's appeal," or " in holding that the finding and award was not in accordance with the subordinate facts found" cannot be considered, since they do not " state the special errors complained of distinctly." General Statutes, § § 5820, 5833, 5837; Hine v. McNerney, 97 Conn. 309, 116 A. 610.

Corrections of the finding comprise the eighth assignment of error. In substance these are that, if Hines had notified defendant forthwith after the accident of September 21, it would have had the opportunity to have furnished him surgical and medical aid which would have prevented the results of the injury from being serious, and Hines would have recovered, and the total cost of compensation to the defendant under the Compensation Act would not have exceeded $300. The testimony of Dr. Fawcett, which the defendant files in support of its claims for correction of the finding, does not support this claim. Dr. Fawcett did not testify that the accident of September 21 caused the hernia, or that an operation or treatment at that time would have been the proper course, or that had such treatment been given Hines would have recovered, and the testimony of no witness is produced which tends to prove that the cost, in this case, if such treatment had been given, would not under the Compensation Act have exceeded $300. No error was committed by the court in his refusal to correct the finding of the commissioner in the manner requested.

Assignment of errors 2 and 7 raises the question whether the court was in error in holding that the commissioner upon the facts was without authority to reduce the award, for the reason that General Statutes, § 5347, as amended by section 3, c. 306, Public Acts 1921, required notice of the injury to be given forthwith upon incapacity resulting, and not forthwith upon the occurrence of the accident as the commissioner had held. Section 3 reads in part as follows:

" Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing him, of such injury; and on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he shall find the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer."

The ruling of the trial court was right for two reasons:

(1) The authority of the commissioner to reduce the award is dependent upon his finding of facts from which the conclusion may be legally drawn that the employer has sustained prejudice in consequence of the failure of the employee to have given notice, forthwith, of his injury. There is nothing in the finding to indicate that Hines suffered a compensable injury through the strain of September 21, nor anything to indicate that the hernia of November 21 was attributable in whole or part to the strain of September 21, nor anything to indicate that from any diagnosis, medical or surgical, made at the time of the first strain, treatment might have been given which would have prevented the hernia of November 21. The finding of a strain through an accident on September 21, followed by a nervous, run-down condition, lowering his vitality, which was aggravated by the severe strain of November 21, necessitating the operation for hernia, does not furnish the causal connection between the two accidents. From the excerpts from the testimony in the record we judge that the defendant did not furnish the commissioner with the evidence from which he could have found facts which would have reasonably supported the conclusion of prejudice.

(2) The principal ground relied upon by the claimant and that upon which the trial court placed its decision was that the notice of injury required to be given by the statute was not a notice to be given forthwith after the occurrence of the accident, but after the incapacity resulting from the injury. This part of section 3 originally appeared as a part of part B, § 21, c. 138, Public Acts 1913, as follows:

" No proceedings for compensation under this act shall be maintained unless a written notice of the injury shall have been given to the employer by the injured employee, or in his behalf within 30 days of the happening thereof and during the continuance of the incapacity."

If this section had remained in this form in the instant case, the required notice could not have been given within 30 days from the strain of September 21, for the incapacity would not then have developed. Necessarily, under this section, the 30-day period must begin with the period of incapacity. This section was amended by chapter 288, Public Acts 1915. The provision for notice by the employee was added to section 7 of this act, now section 5347 as amended, chapter 306 Public Acts 1921. The...