In re Gorski

• Decision Date: 28 June 1917
• Citation: 116 N.E. 811,227 Mass. 456
• Parties: In re GORSKI. In re GOLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 456

116 N.E. 811

In re GORSKI. In re GOLON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1917.

Appeal from Superior Court, Suffolk County.

Proceeding under Workmen's Compensation Act by Frank M. Golon, administrator, to recover compensation for death of John Gorski, employé, against the Howes Brick Company, employer, and the Fidelity & Deposit Company of Maryland, insurer. From decree awarding compensation, the insurer appeals. Reversed and rendered.Joseph F. Carmody of Springfield, for F. M. Golon, administrator.

Albin L. Richards, of Boston, for insurer.

RUGG, C. J.

The pertinent facts are that John Gorski, the employé, received mortal injuries arising out of and in the course of his employment on June 24, 1914. He came to this country in November, 1913, from Villa Zelenea, Poland, leaving there a wife and two daughters. A minor son was in this country and with him the father roomed. He never helped the son, but was aided by the latter, who on two different occasions gave money, the amount of which does not appear, to the father to be sent home. The father did not get work until April or May, 1914, and he never sent home any of his own earnings, but spent them all. The wife lived on the farm owned by the deceased in Poland and she hired a man to work it when the deceased left. She was living on the farm in June, 1914. The son heard from his mother at Christmas, 1914, but had not heard from her since. The son testified that he ‘did not know why he had not heard from his mother since Christmas, 1914, but the war is going on in the place where they lived.’ An administrator of the estate of the deceased was appointed on February 9, 1915. On March 1, 1915, a paper in form a notice to the employer of the injury and death of the employé, and a claim for damages was mailed to the Industrial Accident Board by the administrator, but there was no evidence that it ever reached the board and it never was found among the papers in the case in the possession of the board. Other claims for compensation sufficient in form were filed with the board on October 19, and on December 17, 1915.

The act in part 2, § 15, provides that:

‘No proceedings for compensation for an injury * * * shall be maintained * * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or * * * within six months after death.’

The essential requisites of such a claim for compensation are set out in part 2, § 23, as amended by St. 1912, c. 571, § 5, where it is provided that the claim must be in writing, must set out the time, place and cause of the injury, must be signed by designated persons, and ‘shall be filed with the Industrial Accident Board.’ But the failure to make a claim within the six months period shall not bar proceedings under the act ‘if is is found that it was occasioned by mistake or other reasonable cause.’

The evidence does not afford ground for finding that there was reasonable cause for failure to make a claim for compensation earlier than March 1, 1915, which was between eight and nine months after the injuries were received. It is matter of common knowledge that the great war did not begin until more than five weeks after the decease of the employé. There is of course no foundation for the belief that there was any irregularity in the mails before August 1, 1914. That the mails were not wholly interrupted even after war was declared is manifest from the circumstance that the last letter from the mother came at Christmas, 1914. Neither ignorance of the law nor simple absence from the country constitute reasonable cause for failure to make the claim seasonably. That is settled. McLean's Case, 223 Mass. 342, 111 N. E. 783. There is no basis for a finding under the circumstances here disclosed upon all the evidence that information of fatal injury to the employé did not reach the wife in time for action to have been taken within the period fixed by the statute. The son, then eighteen years and seven months of age, was here and knew of his father's death immediately. Without convincing evidence, it cannot be thought that he did not inform his mother and sisters of his father's fatal injuries within a brief time. Therefore, the finding that the failure to make a claim within the six months period ‘was occasioned by mistake or other reasonable cause’ as provided in the Workmen's Compensation Act, St. 1911, c. 751, pt. 2, § 23, as amended by St. 1912, c. 571, § 5, has no support in the evidence. Fierro's Case, 223 Mass. 378, 381, 111 N. E. 957. While a finding of facts by the board will stand if there is any evidence upon which it can rest (Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737), it must be founded upon evidence and cannot rest upon surmise, conjecture or speculation (Sponatski's Case, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A, 333).

Moreover, there is no evidence and no finding respecting the reason for delay in the appointment of the administrator, the real reason for his appointment, and his conduct touching the prosecution of this claim after the appointment.

A fair construction of the reports of the Arbitration Committee and of the Industrial Accident Board shows by implication that they proceeded on the ruling of law that the mailing of a claim for compensation directed to the board is a compliance with the act. In this they were in error. The act plainly requires that the claim must be ‘filed’ with the board. This requirementis not satisfied by an ineffectual attempt to put the claim in the custody of the board. The word ‘filed’ in this connection imports that the claim is to be placed permanently on the files of the board, so that any person interested may refer to it. The paper on which the claim, with the details set forth in the statute, is written actually must be delivered physically into the possession of the board before it can be said to be filed with the board. Chapin v. Kingsbury, 135 Mass. 580;Id., 138 Mass. 194;Powers Regulator Co. v. Taylor, 225 Mass. 292-299, 114 N. E. 356. The record as it stands contains no evidence and no finding touching the conduct of the administrator after mailing the...