Twonko v. Rome Brass & Copper Co. (In re Appeal of American Mut. Comp. Ins. Co.)

• Decision Date: 15 October 1918
• Citation: 224 N.Y. 263,120 N.E. 638
• Court: New York Court of Appeals Court of Appeals
• Parties: TWONKO v. ROME BRASS & COPPER CO. et al. Appeal of AMERICAN MUT. COMPENSATION INS. CO.

224 N.Y. 263

120 N.E. 638

TWONKO

v. ROME BRASS & COPPER CO. et al.Appeal of AMERICAN MUT. COMPENSATION INS. CO.

Court of Appeals of New York.

Oct. 15, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Act by Frank Twonko for compensation for personal injuries, opposed by the Rome Brass & Copper Company, employer, and the American Mutual Compensation Insurance Company, insurance carrier. Award was affirmed by a divided court (183 App. Div. 292,170 N. Y. Supp. 682), and the employer and insurance carrier appeal. Order reversed.

Jeremiah F. Connor, of New York City, for appellant American Mut. Compensation Ins. Co.

Briggs & Evans, of Rome, for appellant Rome Brass & Copper Co.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent State Industrial Commission.

Michael J. Larkin, of Rome, for respondent Twonko.

CRANE, J.

Section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67), as applicable to this case, required notice of the injury to be given to the employer within 10 days after the accident, and by section 28 the right to claim compensation was forever barred unless within one year after the accident the claim for compensation was filed with the commission. Neither of these provisions was complied with. The commission found that the employer was aware of the accident and that neither the employer nor the insurance carrier was prejudiced by the failure to give the notice required by section 18. It may be that there is some evidence to sustain such a finding, but we are of the opinion that there is no legal excuse shown for failure to comply with section 28. The commission found, and the Appellate Division has sustained the finding by a divided court, that the employer and the insurance carrier were estopped from raising this objection. The facts do not justify this conclusion.

Frank Twonko, while in the employ of the Rome Brass & Copper Company, was injured on July 20, 1914. His claim for compensation was filed with the workmen's compensation commission on September 9, 1915, or 51 days after his right to compensation was barred by the statute. Twonko claimed to have stepped in a hole in the floor, turning his ankle, which thereafter led to serious results. He continued at work for 2 days, and then remained at home for 4 weeks. At the end of this period he returned to work for 3 days, and then remained at home for 5 weeks, when he called a doctor and was taken to the infirmary.

Dr. Reid, who attended him, was apparently anxious about his compensation, as on September 26, 1914, the Rome Brass & Copper Company wrote to Mr. Williver, the district manager of the American Mutual Compensation Insurance Company, notifying him of the accident, and stating that Dr. Reid wanted to know about the man's hospital and medical charges. The insurance carrier replied on September 28, 1914, asking particulars regarding the accident. On October 20, 1914, Kenneth Bow, paymaster of the Rome Brass & Copper Company, called at the Rome Infirmary and procured from Frank Twonko a written statement, signed by him, giving the details of his accident and the extent of the injury. On October 23, 1914, a copy of this statement was sent by the employer to the insurance company. Twonko remained in the infirmary until the 6th of January, 1915. The insurance company sent checks to Drs. Reid and Stranahan for their services to Twonko as follows: On November 3, 1914, for $8; on November 14, 1914, for $44; on January 12, 1915, for $10; and on February 6, 1915, for $5; and to the Rome Infirmary a check dated December 7, 1914, for $30, and on January 12, 1915, a check for $31.

Twonko testified:

That at the time he signed the statement of October 20th for Kenneth Bow, he understood that it was a notice to the company of claim for compensation. ‘Mr. Petz [the interpreter] told me that I was going to get money from the Compensation Insurance Company, and that was the reason I signed the papers.’

The witness further says that this was the reason that he gave no further notice....