In re Liberty Mut. Ins. Co.

• Decision Date: 24 February 1937
• Citation: 298 Mass. 75,9 N.E.2d 718
• Parties: Petition of LIBERTY MUT. INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 75

9 N.E.2d 718

Petition of LIBERTY MUT. INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 24, 1937.^*

Proceeding for compensation under the Workmen's Compensation Act by John Burns, employee, opposed by the Golden Sporting Shoe Company, employer, and the Liberty Mutual Insurance Company, insurer. On the insurer's petition for leave to claim an appeal late from a decree ordering petitioner to pay compensation awarded the employee by the Industrial Accident Board.

Petitioner granted leave to claim appeal within five days after filing of order and opinion.S. L. Sabel, of New York City, for petitioner.

H. J. O'Sullivan, of Brockton, for respondent.

RUGG, Chief Justice.

This is a petition by the insurer in a proceeding under the workmen's compensation act for leave to claim an appeal late from a decree entered in the Superior Court. The allegations of the petition are that a hearing was held on December 14, 1936; that a decree was entered on December 22, 1936, in the Superior Court ordering the present petitioner, as the insurer, to pay compensation to the employee under the provisions of the workmen's compensation act; that neither the insurer nor its counsel ever received notice of the entry of such decree; that diligent search of the records and files of the insurer and of its counsel has failed to discover any trace of such notice; and that the insurer did not learn of the entry of the decree until long after the time for claiming an appeal had expired. The facts stated in the petition are verified by affidavit of counsel and were not seriously disputed at the bar.

It is provided by G.L. c. 152, § 11, as amended by St.1932, c. 129, § 1, that in proceedings under the workmen's compensation act the Superior Court shall render a decree ‘and notify the parties.’ The word ‘notify’ in this connection commonly imports that notice shall actually reach the parties. This point appears to be sufficiently covered by Sweeney v. Morey & Co., Inc., 279 Mass. 495, 181 N.E. 782;Parker v. Boston Safe Deposit & Trust Co., 186 Mass. 393, 71 N.E. 806. In the absence of any other controlling provision, a notice of this nature may be given by mail. Blair v. Laflin, 127 Mass. 518, 521;Gloucester Mutual Fishing Ins. Co. v. Hall, 210 Mass. 332, 335, 96 N.E. 679, Ann.Cas.1912D, 348. Every presumption is that a notice sent by mail will be delivered and received. Tobin v. Taintor, 229 Mass. 174, 118 N.E. 247. The employee seasonably received a notice sent to him pursuant to said s. 11 by the clerk of the court. The mail is not infallible, however, and in the face of a statement, supported by affidavit, of counsel in open court that the notice has not been received we are not inclined to assume that the notice was actually received by the insurer even though a like notice was received by the employee.

The insurer states that the definite question of law to be raised on the appeal is whether the Superior Court erred in holding that there was sufficient evidence to warrant the finding of the Industrial Accident Board that the employee was not unreasonable in his refusal to undergo an operation to relieve...