Petraska v. Nat'l Acme Co.

• Decision Date: 03 May 1921
• Docket Number: No. 279.,279.
• Citation: 113 A. 536
• Parties: PETRASKA v. NATIONAL ACME CO. et al.
• Court: Vermont Supreme Court

113 A. 536

PETRASKA

v. NATIONAL ACME CO. et al.

No. 279.

Supreme Court of Vermont. Windsor.

May 3, 1921.

Appeal from Windsor County Court.

Proceeding by Mike Petraska under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by National Acme Company, employer, and the Ætna Life Insurance Company, insurer. From an order and award of compensation, the employer and insurer appeal. Order vacated, award set aside, and claim dismissed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

Harvey, Maurice, Whitney & Fitts, of Brattleboro, for appellants.

Roland E. Stevens, of White River Junction, for appellee.

SLACK, J. The defendants appeal from the award of the Commissioner of Industries, allowing the claimant compensation for injuries received while in the employ of the defendant National Acme Company, and move to dismiss the proceedings on the ground that the commissioner did not have jurisdiction to hear and determine the same; it not appearing that the claimant made claim for compensation as required by law, or that the defendants made voluntary payments of compensation on account of such injuries.

G. L. 5796, 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; or, in case of death, then within six months after such death, whether or not a claim has been made by the employee himself for compensation. Such notice and such claim may be given or made by any person claiming to be entitled to compensation or by some one in his behalf. If payments of compensation have been made voluntarily, the making of a claim within such period shall not be required."

Such claim must be in writing. G. L. 5797. And if the employer be a corporation, it may be given to any agent of such corporation upon whom process may be served, or any officer of the corporation, or any agent in charge of the business at the place where the injury occurred; and shall either be delivered or sent by registered letter addressed to the employer at his or its last known residence or place of business. G. L. 5798.

The accident occurred May 2, 1916. A partial hearing was had before the commissioner November 9, 1917, but no order respecting compensation was made as a result of that hearing. A further hearing was had before the commissioner October 22, 1919, resulting in the order appealed from, which is dated April 7, 1920. The claimant never made any claim for compensation; and the legal effect of his failure to do is the first question for consideration. Although a new question in this jurisdiction, it has received the attention of courts elsewhere. A statute nearly identical with ours respecting the making of claim for compensation was before the court in Bushnell v. Industrial Board et al., 276 Ill. 262, 114 N. E. 496, and it was held that the making of such claim was jurisdictional and a condition precedent to the right to maintain an action, and that the board was without jurisdiction in the matter unless it affirmatively appeared that such claim was made. Central Locomotive & Car Works v. Industrial Commission, 290 Ill. 436, 125 N. E. 369; Ohio Oil Co. V Industrial Commission, 293 Ill. 461, 127 N. E. 743.

A similar statute was under consideration in Re Levangie, 228 Mass. 213, 117 N. E. 200, where the claimant failed to make a claim for compensation, and it was held that full performance of the conditions of the act were essential prerequisites to the jurisdiction of the board, and recovery was denied. To the same effect are Brown v. Weston-Mott Co. et al. (1918) 202 Mich. 592, 168 N. W. 437; Twonko v. Rome Brass & Copper Co. et al., 224 N. Y. 263, 120 N. E. 638; Good v. City of Omaha (1918) 102 Neb. 654, 168 N. W. 639. In Barrett v. Industrial Commission, 288 Ill. 39, 123 N. E. 29, it was held that the statutory requirement of notice of the accident was jurisdictional, and unless it appeared that such notice had been given the commission was without jurisdiction, and its award would be set aside. See, also, In re Murphy, 226 Mass. 60, 115 N. E. 40. The statute under consideration is somewhat analogous to our statute requiring notice in cases of injury on bridges and culverts. G. L. 4617. This court had repeatedly held that the latter statute pertains to the remedy, and that it is essential to the right to maintain an action for injuries resulting from defective bridges or culverts to prove that such notice was given. Kent v. Lincoln, 32 Vt. 591; Matthie v. Barton, 40 Vt. 286; Parker v. Pittsfield, 88 Vt. 155, 92 Atl. 24. In Matthie v. Barton the court said:

"The want of such notice did not operate to extinguish a right of action which once existed; but it operated to prevent such right of action from ever having existed."

The whole scheme of the Workmen's Compensation Act is designed to work out a speedy adjustment and payment of claims for industrial accidents in a summary and simple manner. G. L. 5760. To this end the common law and statutory rules of procedure and evidence are done away with in hearings before the commissioner. Acts 1919, No. 158. And the provisions of the act are to be liberally construed. G. L. 5831. But we cannot overlook the fact that the rights of employers as well as the rights of employees are safeguarded by its provisions, that the rights of both are designed to be protected by it, and that the provisions of the law, as written, must be given force.

It is a well-recognized rule of statutory...