Simmons v. Holcomb

• Decision Date: 04 April 1923
• Citation: 98 Conn. 770,120 A. 510
• Court: Connecticut Supreme Court
• Parties: SIMMONS v. HOLCOMB.

120 A. 510

98 Conn. 770

SIMMONS v. HOLCOMB.

Supreme Court of Errors of Connecticut.

April 4, 1923

Appeal from Superior Court, Hartford County; George E. Hinman Judge.

Proceedings under the Workmen's Compensation Act by Ignatz Simmons employee, to recover compensation for an injury, opposed by Archie E. Holcomb, employer. An appeal from a finding and award of the compensation commissioner dismissing the claim was dismissed by the superior court, and claimant appeals. No error.

On September 19, 1919, claimant was employed by respondent, and sustained an injury to his leg arising out of and in the course of his employment. Of this injury the respondent had prompt knowledge, and in fact paid a part of claimant's hospital bills.

The claimant was an ignorant man unable to speak or write the English language. Failing to obtain compensation from the respondent, he came to Hartford in search of the workmen's compensation office, and he was through misunderstanding directed to the office of the United States Fidelity & Guaranty Company, which he believed to be the workmen's compensation office. The officials of the insurance company were led to believe and understand that the respondent was one A. R. Holcomb, a tobacco farmer of the same town as the respondent herein, and who at that time was insured in the company, and payments were accordingly made the claimant under misapprehension of fact until the error was discovered more than a year later, when they were discontinued on the volition of the United States Fidelity & Guaranty Company, which discontinuance was later confirmed by order of the commissioner. Under this agreement said United States Fidelity & Guaranty Company paid the claimant $953.78.

No written notice of claim was served by the claimant upon the respondent within one year from the date of the injury; nor was there within said period a hearing, a written request for a hearing, nor an assignment of a hearing, nor the submission of a voluntary agreement.

Before the commissioner the claimant contended that the terms of G S. § 5360, should not be applied in the case at bar because he had been misled though the payment by the respondent of a part of his hospital bill and the payment of compensation by the United States Fidelity & Guaranty Company, and asked that an award be made against Archie E. Holcomb for the sum due him as compensation. The commissioner overruled this contention and dismissed the claim.

Claimant appealed to the superior court, claiming as reasons of appeal the ruling of the commissioner that under the facts as found the claimant was not excused from giving written notice of claim within one year, or a written request for a hearing, or assignment of a hearing, or a submission of a voluntary agreement, and also in holding and ruling that claimant's right of action had expired under section 5360 of the General Statutes as amended.

The superior court found the issues on appeal for the respondent, and on appeal to this court claimant assigns as error the action of the court in overruling his claims as above set forth.

A. Storrs Campbell, of Hartford, for appellant.

Ralph O. Wells, of Hartford, for appellee.

KEELER, J. (after stating the facts as above).

The soundness of the plaintiff's contention above stated depends upon the construction of G. S. § 5360, as amended by an act of the year 1919 (Pub. Laws 1919, c. 251); this latter amendment not, however, relating to the point under discussion. The parts of section 5360 material to the matter before us are as follows:

" Sec. 5360. Claims for Compensation.--No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is made within one year from the date of the injury; * * * but where there has been a hearing or a written request for a hearing or an assignment for hearing within one year from the date of the injury, or where a voluntary agreement has been submitted within said period of one year, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shall show that he was ignorant of the injury and was prejudiced thereby."

It is the contention of the claimant that the provision as to giving notice of claim within one year is purely in the nature of a limitation, and as in case of certain other statutes of limitation, any given case may be taken out of its operation providing proper facts appear therein. Defendant, on the other hand, urges that the limitation of time to make claim is a condition attached to the right of action, limiting the liability and not merely the remedy.

This question was considered by us in the case of Schmidt v. O. K. Baking Co., 90 Conn. 217, 96 A. 963. In that case the injury forming the subject-matter of the claim occurred September 15, 1914, and no notice thereof was given to the respondent until April 7, 1915. If the limitation applied to the liability this suit was governed by the provisions of P. A. 1913, c. 138, § 21, in force at the time of the injury, if the limitation was a statute of limitation only, applying simply to the remedy, the claim was governed by the provisions of P. A. 1915, c. 288, § § 3 and 13, in force at the time of the giving of the notice and the hearing before the commissioner. The respondent in that case insisted that the provisions of the act concerned substantive rights. The court said:

" The latter contention is the correct one. The relation between the parties was contractual; their rights and obligations arose

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