In re Murphy

• Decision Date: 01 February 1917
• Citation: 115 N.E. 40,226 Mass. 60
• Parties: In re MURPHY. In re AMERICAN MUT. LIABILITY INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 60

115 N.E. 40

In re MURPHY. In re AMERICAN MUT. LIABILITY INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1917.

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Jeremiah Murphy for compensation for personal injuries, opposed by the Davitt Iron Foundry Company, employer, and the American Mutual Liability Insurance Company, insurer. Compensation was awarded, the award confirmed by the superior court, and from the decree the insurer appeals. Decree reversed, and case recommitted to the Industrial Accident Board for further hearing.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for appellant.

CARROLL, J.

Jeremiah Murphy, the employé, on Friday, September 24, 1915, received a ‘slight scratch or break on the tip of the elbow,’ ‘but did not think it was severe enough to amount to anything.’ He worked the folowing day. Sunday he saw a physician, who treated him three times. Wednesday, September 29, 1915, his arm was badly swollen and ‘pus was exuding from the elbow.’ He then consulted another physician and was advised to notify the Industrial Accident Board. On this day he went to the office of his employer and told the foreman of the injury. No notice in writing of the time, place and cause of the injury, as required by sections 15 and 16, part 2, of the Workmen's Compensation Act (St. 1911, c. 751), was given. Compensation from October 8, 1915, to November 11, 1915, was awarded.

The committee of arbitration found that the employer had knowledge of the injury within the meaning of section 18, part 2, of the act, which provides that:

‘Want of notice shall not be a bar to proceedings under this act, if it be shown that the association, subscriber or agent had knowledge of the injury.’

On appeal the Industrial Accident Board awarded the plaintiff compensation and in its decision stated that the--

‘insurer has raised the question of the giving of notice ‘as soon as practicable after the occurrence of the injury.’ * * * The Board believe that, in a case of this character, where there is no doubt as to the occurrence of the injury and the employé, despite his lack of education, impresses the Committee with his evident sincerity and his truthfulness with regard to the conveying of notice to his foreman as the agent of his employer, that the rights of the claimant should not be defeated by the setting up of the technical point that notice was not given as soon as practical after the occurrence of the injury.'

Notice in writing must be given by the employé before he can recover under the act, and the necessity of such a notice is not a mere technicality; it is essential to his rights. Doubtless the Legislature could have dispensed with this condition or could have insisted on a mere oral notice, but it has not done so. The statute expressly requires a written notice. The giving of such a notice is a part of the plaintiff's case and the burden of proof rests upon him; it is not a matter of defense resting on the employer or insurer. In no case can the injured workman recover compensation unless such a notice is given within the time required, except where the employer or insurer had knowledge of the injury. Knowledge may dispense with the necessity of notice, but the statutory notice and the ‘knowledge’ are not one and the same thing. While information given orally under some circumstances may be sufficient to establish knowledge and permit recovery, an oral notice does not fulfill the requirements of ...