Pirrung v. American News Co.

• Citation: 67 N.W.2d 748,75 S.D. 444
• Decision Date: 27 December 1954
• Docket Number: No. 9456,9456
• Parties: Eleanor PIRRUNG, Claimant and Respondent, v. AMERICAN NEWS COMPANY, Employer, Royal Indemnity Company, Insurer, Defendants and Appellants.
• Court: Supreme Court of South Dakota

Page 748

67 N.W.2d 748

75 S.D. 444

Eleanor PIRRUNG, Claimant and Respondent, v. AMERICAN NEWS COMPANY, Employer, Royal Indemnity Company, Insurer, Defendants and Appellants.

No. 9456.

Supreme Court of South Dakota.

Dec. 27, 1954.

T. R. Johnson, Sioux Falls, for defendants-appellants.

Woods, Fuller, Shultz & Smith, Sioux Falls, for claimant-respondent.

SMITH, Presiding Judge.

The judgment of the circuit court awarded workmen's compensation to the employee. The employer and its insurance carrier have appealed. Under appropriate assignments they raise but two propositions which merit discussion, viz., (1) employee failed to comply with SDC 64.0601, dealing with notice to the employer of the injury, and (2) the injury did not arise out of and in the course of the employment. Cf. SDC 64.0102(4).

Whether there was compliance with SDC 64.0601 is the first point raised. That section reads:

'Every injured employee or his representative shall immediately upon the occurrence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to a physician's fee nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative had knowledge of the injury or death, or that the person required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person or other equally good reason; but no compensation shall be payable unless written notice is given within thirty days after the occurrence or the injury or death unless reasonable excuse is made to the satisfaction of the Commissioner for not giving such notice.'

The employer is a distributor of magazines. On December 24, 1952 while preparing bundles of magazines for delivery, the employee became conscious of a burning sensation in her lower back. Shortly she developed sharp pain through her left abdomen and down her leg. She consulted a physician and reported all of these facts and symptoms. She was hospitalized for a few days and a tentative diagnosis of sub-acute pancreatitis was made. From then until February 2, 1953 she was intermittently at home, at work, and back in the hospital, but was without relief from the described pain. On February 2 she was placed under the care of an orthopedic specialist who diagnosed her trouble as lower back strain. He testified he found objective symptoms of such an injury and that it was traumatic in origin. His treatment in the hospital consisted of traction, a cast, and then a supporting jacket. She responded to this treatment. She was released from the hospital February 19, returned to half-time work March 2, and full-time work March 30, and was discharged as cured in September 1953.

On January 2, 1953 the employee told the manager, under whom she worked, of the pain she was suffering. January 4, he was informed she would not return to work on the 5th because of this pain. On January 19 when she returned to work after her first hospitalization she told him she did not know what was wrong with her, but complained of the same pain. On February 12, while the employee was in the hospital, her daughter called the manager on the telephone and advised him her mother had decided she must have hurt her back at work. In testifying about this conversation with the daughter the manager said, 'Well, the conversation about the injury ended when I said I would check into it further, and with the idea of filing a claim if she had hurt it at work.' However, he neither made such an investigation nor did he inform the employee of his decision to make no investigation. On March 9, 1953 the employee complained to the manager because he had failed to file a compensation claim. He then had her fill out a report. From the testimony of the manager we infer that the report stated she had strained her back while working on the line on December 24.

The findings of the Commissioner, adopted by the circuit court, include the following:

VI. 'The claimant was examined by Dr. Quinn on January 6, 1953 and hospitalized by him on said date. He diagnosed her ailment as sub-acute pancreatitis, subsequently confirmed by Dr. Billion. Drs. Billion and Quinn subsequently ruled out the possibility of pancreatitis, and called in Dr. Van Demark on February 2, 1953, who diagnosed the injury as a lower back strain, thereafter concurred in by Drs. Quinn and Billion. The claimant, believing that she was suffering from pancreatitis, had no reason to report the injury to her employer. When she learned of the correct diagnosis on February 2, and within 30 days thereafter, her said employer was notified of the injury by her daughter--Murial Driggs--at which time, the employer, through its manager, J. H. Wagner, advised that he would investigate to determine if a claim should be filed for workmen's compensation.'

VII. 'The mistaken diagnosis of Drs. Quinn and Billion constitutes a reasonable excuse for not reporting the injury within the 30 days after December 24, 1952, and the employer had knowledge of the injury within 30 days after February 2, 1953.'

The question for decision is whether the undisputed facts and the findings of the Industrial Commissioner support his conclusion that the giving of the notice of injury, provision for which is made by SDC 64.0601, supra, was excused.

In analyzing these facts, the initial circumstance which requires consideration is that from December 24, 1952 until February 2, 1953, through no fault of her own, the employee was neither aware of the occurrence of the accident nor of her injury. Because it would be unreasonable to believe the legislature intended to require notice by an employee of that of which, through no fault of her own, she had no knowledge, we align ourselves with those courts which hold the duty of the employee to notify the employer of the occurrence of an accident and injury does not arise until she learns she has sustained a compensable injury. American Rolling Mill Co. v. Stevens, 290 Ky. 16, 160 S.W.2d 355, 145 A.L.R. 1256; Annotation, 145 A.L.R. 1263 at 1286, and Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 236.

The duty to notify her employer of the accident and her injury arose on February 2, 1953. She was then informed of the diagnosis of her physician and had become convinced she had strained her back while working on the line as above described on December 24, 1952. When this duty arose she was confined in the hospital. While so confined she had her daughter communicate with the manager of her employer. However, the only knowledge the employer gained from the daughter was that the employee claimed to have suffered a back injury while working for her employer. The employee's symptoms of pain had been communicated to the manager prior to February 2, 1953. Under the holding of Wilhelm v. Narregang-Hart Co., 66 S.D. 155, 279 N.W. 549, the knowledge thus gained by the employer was not sufficient to excuse the employee from giving the formal notice described in SDC 64.0601 and 64.0602; the knowledge thus communicated was insufficient to fairly afford the employer opportunity to investigate both the cause and nature of the injury.

However, it is an undisputed fact, and the Commissioner found that when the insufficient information was communicated to him the manager said he would undertake...