Schmidt v. O. K. Baking Co.

• Decision Date: 15 March 1916
• Citation: Schmidt v. O. K. Baking Co., 90 Conn. 217, 96 A. 963 (Conn. 1916)
• Parties: SCHMIDT v. O. K. BAKING CO.
• Court: Connecticut Supreme Court

96 A. 963

90 Conn. 217

SCHMIDT

v. O. K. BAKING CO.

Supreme Court of Errors of Connecticut.

March 15, 1916.

Appeal from Superior Court, Hartford County; Joseph P. Tuttle, Judge.

Proceedings under the Workmen's Compensation Act by Theodore P. Schmidt against the O. K. Baking Company.From a judgment of the superior court affirming the finding of a Compensation Commissioner refusing an award to the claimant, he appeals.Judgment set aside, and cause remanded.

Appeal by claimant from the refusal of the compensation commissioner of the First district to award him compensation for injuries to him arising out of and in the course of his employment by the respondent, taken to and tried by the superior court for Hartford county, Tuttle, J., which found that the commissioner had committed no error in the application of the legal principles pertinent to the cause and dismissed the appeal. from which claimant appealed.Error.

The finding and award of the compensation commissioner under review shows that on September 15, 1914, the claimant, while employed by the respondent baking company, received personal injuries arising out of and in the course of such employment which were not caused by his willful or serious misconduct or intoxication.These injuries were sustained while he and his brother were lifting a heavy barrel of jelly in the basement of respondent's establishment, the floor of which was, at the time, slippery.For some reason his brother lost his hold of the barrel, whereupon its whole weight was thrown suddenly upon the claimant while in a stooping posture.He has been disabled ever since.His present disability consists of a partial paralysis of the lower part of the body, and the prospect for his complete recovery is extremely unfavorable.This disability was caused by hemorrhage in the lumbar region of the spine due to the injuries received.Beginning about five days after the injuries, he has been constantly under medical treatment.Written notice of the injuries was not given to the respondent, who had no previous knowledge of them until April 7, 1915.Notice of claim, in the form provided by the compensation commissioner, was served upon the respondentApril 13, 1915.

Francis W. Cole and Thomas Hewes, both of Hartford, for appellant.Warren B. Johnson, of Hartford, for appellee.

PRENTICE, C. J.(after stating the facts as above).No question was or is made as to the claimant's right to compensation, save such as arises from his delay in giving notice to his employer of his injuries, and it was for reasons growing out of that delay that his claim was disallowed by the compensation commissioner and the appeal from such disallowance dismissed by the superior court.

Preliminary to passing upon the question thus presented as to the consequences attached to the delay in the giving of notice to the employer, it becomes necessary to determine whether the provisions of section 21, c. 138, of the Public Acts of 1913, or those of sections 3and13 of chapter 288 of the Public Acts of 1915', which did not go into effect until May 20, 1915, both dealing with that subject, but in a somewhat different manner, are controlling.In the claimant's behalf, it is contended that the provisions of the earlier act, which the court below interpreted and applied, relate to procedure and remedy, and therefore were superseded by those of the later act in force when the hearing before the commissioner was had.On behalf of the respondent, it is insisted that they concern substantive rights.

The latter contention is the correct one.The relation between the parties was contractual, their rights and obligations arose from that relation, and the terms and conditions of it were defined by the statute in force which formed a part of the contract of employment.Powers v. Hotel Bond, 89 Conn. 143, 147, 93 Atl. 245;Sibley v. State, 89 Conn. 682, 686, 96 Atl. 161.By these terms and conditions as prescribed by the act of 1913, the liability of an employer, in case of injury to the employé, was not fixed by the simple fact of injury to the employé arising out of and in the course of his employment.The element of notice of injury to the employer, if he be ignorant of it, entered into the very essence of the injured party's claim and the extent of it.The time when the notice should be given was made a factor to be considered in determining what the claim should be which he was entitled to enforce in the manner prescribed by statute.

The act of 1913 was in force when this claimant's injuries were received, when the 30 days provided by it for notice thereof to be given to his employer had run—when notice was in fact given to his employer and when the attempt to enforce his claim was begun.Whatever right of compensation he might have had thus became fixed, and the extent of it determined, or, rather, the elements to be considered in its determination, fixed.Whatever inchoate right, arising from his injuries, he may have lost by noncompliance with the conditions precedent to a definite and enforceable claim was then lost.Whatever that loss was, it could not be restored to him by subsequent legislation.Any attempt to do so would be to deprive his employer of a right vested in it under its contract.

Turning to section 21 of the act of 1913, we find that its opening sentence reads as follows:

"No proceedings for compensation under this act shall be maintained unless a written notice of the injury shall have been given to the employer by the injured employé or in his behalf within thirty days of the happening thereof, and during the continuance of the incapacity on account of which compensation is claimed, nor unless claim for compensation is made within one year from the date of the injury."

Then follow provisions as to the character of the notice and the manner of giving it.The section, omitting its final sentence, which relates to another matter, then concludes as follows:

"But no...