Martin S. Larrabee v. Citizens Telephone Co.

• Decision Date: 04 January 1934
• Citation: 169 A. 784,106 Vt. 44
• Parties: MARTIN S. LARRABEE v. CITIZENS TELEPHONE COMPANY
• Court: Vermont Supreme Court

169 A. 784

106 Vt. 44

MARTIN S. LARRABEE v. CITIZENS TELEPHONE COMPANY

Supreme Court of Vermont

January 4, 1934

Special Term at Rutland, November, 1933.

Master and Servant---Workmen's Compensation Act---Notice and Claim for Compensation---Burden on Claimant Where Delay Has Occurred in Filing Claim---G. L. 5796, as Amended by Acts 1925, No. 101---Practice in Cases Involving Jurisdiction of Commissioner of Industries---Appeal on Questions Certified by Commissioner of Industries before Award Unallowable.

1. Under G. L. 5796, as amended by Acts 1925, No. 101, relating to notice and claim for compensation to be given employer as prerequisite to recovery under Workmen's Compensation Act, held that to avoid bar to proceedings for compensation by reason of delay in filing claim, claimant has burden of showing either that employer had knowledge of injury or that employer was not prejudiced by want of or delay in claimant's giving notice thereof or in making claim for compensation, but that he need not show both.

2. Practice whereby question involving jurisdiction of commissioner of industries was certified by him to Supreme Court on appeal, but evidence relating thereto already in case was not furnished, question not being briefed by either party but left for determination in event case went back for further evidence, disapproved.

3. Commissioner of industries held to have no authority before award has been made to send compensation cases to Supreme Court on appeal on questions certified by him.

APPEAL to Supreme Court, Lamoille County, from findings of fact and order of commissioner of industries overruling defendant's motion to dismiss petition raising question of his jurisdiction to try and determine cause.

Cause remanded to the commissioner of industries for such further proceedings as the parties may be advised.

Fenton Wing, Morse & Jeffords for the defendant.

S.E Darling for the claimant.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

SLACK

The claimant was employed by defendant in August, 1927, in clearing a right of way for a telephone line. In cutting the limbs from a tree he had felled a sapling which was bent over by the tree in its fall, was released, flew back, and hit him in the left eye. He suffered severe pain at the time and worked no more that day. Later in the day he told one Bugbee, who was in the employ of defendant and had charge of said work, about the injury, gave him a detailed account of how it happened, and Bugbee inspected the eye. Bugbee acknowledged that claimant had received quite a blow, and told him that he might have to lay off for a while. Bugbee also told claimant at that time to see a doctor. Claimant did so that night, but did not see one again until February, 1931. In the meantime the sight of that eye (he had previously lost the sight of the other) gradually diminished until he was unable to get about the street without assistance, or the use of a cane to find his way. In February, 1931, he consulted an eye specialist and learned that he had a cataract, but that it was not far enough advanced to be removed. It was removed February 27, 1932. Claimant went to work at his regular employment the morning following the accident and worked continuously thereafter until the right of way was cleared, September 1, 1927, when his services for defendant terminated. He did not say anything to Bugbee about his injury after the day it happened until October, 1930, when he called him by telephone and told him that he was having a great deal of trouble with his eye and was practically blind. He did not give defendant written notice of the injury or make claim for compensation until June 28, 1932, when he gave it written notice of both. He was unable to give any reason why he could not have done this before. He offered no evidence to show that defendant was not prejudiced by want of or delay in giving such notice.

The commissioner has certified several questions for review pursuant to G. L. 5808, but, in effect, all except the seventh, raise the single question of whether, on the foregoing facts, he has jurisdiction in these proceedings.

The defendant contends that to give the commissioner jurisdiction it was necessary for claimant to show (1) full compliance with the requirements of G. L. 5796 and 5797; or (2) a claim for compensation within a reasonable time after the expiration of the time fixed by statute; or (3) that it had knowledge of the injury and had not been prejudiced by the failure of claimant to make claim for compensation earlier than he did. The claimant insists that the facts shown gave the commissioner jurisdiction.

G. L. 5796, so far as here material, provides: "A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the happening thereof, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury." G. L. 5797 provides that such notice and claim shall be in writing; what information the notice shall contain, by whom signed, etc. G. L. 5798 provides to whom, and how, notice of injury and claim for compensation shall be given. G. L. 5799, as amended by No. 101 of the Acts of 1925, provides that a notice given under section 5796 shall not be held insufficient because of certain inaccuracies unless it is shown that the employer was in fact misled to his injury thereby, and further that: "Want of or delay in giving such notice, or in making such claim, shall not be a bar to proceedings under the pro- visions of this chapter if it is shown that the employer, his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or want of notice." The italics are ours, and indicate the words added to the original statute by the amendatory act.

We held in Petraska v. National Acme Co. et al., 95 Vt. 76, 113 A. 536, and Barber v. Estey Organ Co. et al., 100 Vt. 72, 135 A. 1, which was governed by the same statute, that the commissioner did not have jurisdiction because claim for compensation was not made within the time prescribed by G. L. 5796. Following the decision in the first case, the Legislature amended the statute in the manner indicated. That the Legislature intended by the amendatory act to liberalize the statute in this respect must be admitted. Literally construed, the act is broad enough to support claimant's position. That the Legislature intended to go that far at first seemed doubtful. But we find a tendency elsewhere to do away with many of the earlier requirements of the Workmen's Compensation Act. This is illustrated by the legislative history of ...