Combes v. Geibel

The industrial commission found that, “ On or about December 13, 1916, the day when Charles Combes sustained his injury he * * * was employed as a stableman in the livery and boarding stable, operated by the employer.”

Also that, “ Charles Combes in connection with the duties' of his employment was rolling out certain cans containing manure and while so doing' he accidentally slipped on the ice and snow on the sidewalk, and one - of these cans fell upon him and crushed his left hand on to the sidewalk. As the result of this crushing, an infection set in which necessitated the amputation of three fingers.” .........

And also, “ Written notice of the injury to the claimant and of his death was not given to the employer respectively, within ten days after disability and thirty days after his death, but neither the insurance carrier nor the employer was prejudiced by such failure.”

The findings were made as a part of the decision and two awards based thereon, one upon a claim for compensation for disability filed by the employee January 25, 1917, and the other upon a further claim for death benefits under the statute (Workmen’s Compensation Law, section 16), filed March 26, 1917, by the employee’s surviving wife. The decision of the commission was not unanimous. One of the commissioners dissented. An appeal was taken from the awards to the Appellate Division of the Supreme Court where they were affirmed by a divided vote of the court. (Matter of Combes v. Geibel, 187 App. Div. 912 .)

We will assume, without deciding, that there is some : evidence to 'sustain the findings of an injury to the employee and that his death was caused by such injury. We do not think that there is any evidence to sustain the finding that “ neither the insurance carrier nor the employer was prejudiced ” by the failure to give the notices required by the statute.

There was no. reason why notices could not have been given in this- case. No pretense was made of obeying the statute quoted. Not only did the claimants fail to give the notices as' provided by the statute but no written notice- of the injury or death was given to any one at any -timé except the claim dated January 25, 1917, that' we -have' mentioned, and a notice by letter to the employer, from the' employee’s wife saying that her husband'.-had his lingers cut in bis place and that “ He (the.employee) had1 stated by a notary public that he was ■hurt,”; and-fin-:-which letter she asked the employer to look "after compensation.- That letter must have been written after January 25, 1917.' The employer testified ■ that in response.to that letter .he .went to see.the employee -' and -was.tdld byshim or;by his wife that.he hurt-his finger on" a can -: while-'; working in-the stable; The-employee ; 'die'd-ithe :.rrext :day." '-'- • :.- ■ • •• ■ ■ ,- • ••; ......

'' While the-employer knew that the employee had a sore - finger he testified, without contradiction that he saw the finger when the employee first commenced working for

The findings from which we have quoted, including the statement that neither the insurance carrier nor the employer was prejudiced by the failure to give the notices required by the statute, and the ruling of the commissioners excusing the failure to give such notice “ on the ground that such failure did not prejudice the employer or the insurance carrier,” are not sustained by any evidence whatever.

This court in Matter of Bloomfield v. November ( 219 N. Y. 374 , 376) say: “ The legislature, however, has deemed it proper and essential under ordinary circumstances that a written notice of disability and claim should be promptly served so as to give an employer the opportunity to investigate the circumstances of the claim. This requirement ought not to be treated as a mere formality or be dispensed with as a matter of course whenever there has been a failure to serve such notice.” (Matter of Bloomfield v. November, 223 N. Y. 265 ; Matter of Hynes v. Pullman Co., 223 N. Y. 342 .) The burden rests upon the claimant who has been guilty of the default to excuse the same. (Matter of Bloomfield v. November, supra; Matter of Hynes v. Pullman Co., supra. )

If the employee was injured on' December 13, as he claims, by having his finger pinched by one of the cans that he was handling, it was a mere aggravation of a prior injury or inflamed condition of the same finger. He thereafter applied home remedies and continued at his

If the notices had been given, as required by the statute or even if knowledge of the alleged injury had been obtained in some other way at or about the time it is claimed that the injury occurred, there would have been an opportunity not only for a prompt general investigation of the alleged circumstances of the accident but of the employee’s story thereof and there could have been an examination of the injured finger, and such care and attention could have been given to it as to have prevented infection or if infection was not so prevented, then the facts relating to it could have been obtained from which it could have been better determined whether the infection was the result of causes other than the alleged injury. There can be no reasonable doubt that without the statutory notices or proof of knowledge of the injury and claim, the employer and insurance carrier were prejudiced. -

The order of the Appellate Division should be reversed and the awards of the industrial commission annulled, and the claims dismissed, with costs in this court and in the Appellate Division payable by the industrial commission.

His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ., concur.

Order reversed, etc.