COURT OF APPEALS OF NEW YORK.

BLOOMFIELD

ບ.

NOVEMBER ET AL.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

1. MASTER AND SERVANT—WORKMEN'S COMPENSATION

ACT-FINDING OF COMMISSION-CONCLUSIVENESS. Findings of the Industrial Commission are conclusive on appeal from its award, although the circumstances disclosed may be suspicious. (For other cases, see Master and Servant, Dec Dig. § 417[7].)

2. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACTS-NOTICE OF INJURY-FINDINGS-SUFFICIENCY.

In proceeding to recover compensation for injury causing blood poisoning, finding of the Industrial Board that the employer was not prejudiced by failure to give notice within ten days of the disability, because at the time of the injury the employee stated to the employer that she had pricked her finger, was insufficient to show absence of prejudice from such failure to give notice.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

3. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACTS-FAILURE TO GIVE NOTICE-BURDEN OF PROOF. A claimant of workmen's compensation, who failed to give notice of the disability, has the burden of supplying evidence and securing a finding that no prejudice has resulted from failure to give notice to the employer and insurer.

(For other cases, see Master and Servant, Dec. Dig. § 403.) Cardozo, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Proceedings by Ella Bloomfield for Workmen's Compensation, opposed by S. November, employer, and the Zurich General Accident & Liability Insurance Company, Limited, insurance, carrier. From an order of the Appellate Division (167 N. Y. Supp. 975), reversing an award in favor of the claimant, the State Industrial Commission appeals. Affirmed.

See, also, 219 N. Y. 374, 114 N. E. 805, 172 App. Div. 917, 156 N. Y. Supp. 1116, 173 App. Div. 924, 157 N. Y. Supp. 1118.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for appellant.

John N. Carlisle, of Albany, for respondents.

HISCOCK, C. J. The claimant has been awarded a substanital Sum as compensation for injuries alleged to have been received while in the employ of the defendant November. It is claimed and has beer found that while in the discharge of her duties as a * Decision rendered, April 23, 1918. 119 N. E. Rep. 705.

Vol. II-Comp. 23.

cloak model her finger was pricked by a pin, and that therefromn resulted infection and loss of the use of a finger and serious injury to the wrist.

[1] The case has displayed unquestioned features which might well have challenged the insurable suspicion of the commission. A trivial injury is said to have given rise to serious consequences; the claimant concededly has made statements denying the existence of facts upon which a claim could be predicated; no notice of injury as provided by statute was ever served, and no claim under the statute was made until, after the expiration of nine months, it was quickened into activity by the stimulating advice of claimant's brother, who was connected with the Industrial Commission. Of course the findings which have been made disregarding these circumstances are binding upon us, and the circumstances themselves are mentioned simply for the purpose of indicating that this is not a case where the respondents should be lightly deprived of their rights on the theory that the claim against them rests upon a foundation of undisputed evidence and is surrounded by an atmosphere of undoubted good faith.

The question involving the rights of the respondents which survives upon the findings that have been made is the one whether claimant's conceded failure to serve a written notice of her claim as provided by the statute has been excused on the ground that the respondents were not injured thereby. There 'is no finding or evidence that this failure is excused under the statute because it was impracticable to give such notice. The only excuse which has been found for the default is the one that the employer and the insurance company were not prejudiced by such failure.

It was

[2, 3] This question is not a new one in this case. presented upon a former appeal. Then an award had been made, although it appeared that no written notice had been given, and although no finding had been made which excused such failure upon either of the grounds provided by the statute. Under those circumstances we reversed the award and remitted the case to the Industrial Commission in order that it might make findings upon this subject. Matter of Bloomfield v. November, 219 N. Y. 374, 114 N. E. 805. The commission has now made a finding, but we think that it is insufficient to excuse claimant's default or to sustain the award. The finding is that:

"Ella Bloomfield failed to give to her employer written notice of injury within ten days of disability. Such failure has not prejudiced the employer for the reason that the employer was personally notified at the time of the accident that she had pricked her finger, and that she required some peroxide for application to the injury, and he then had an apportunity to avail himself of all the facts and to give such attention as the occasion might require

to the matter, and failed to do so because he was busy and did not consider the matter of any moment."

It is also found that the swollen condition of claimant's wrist was displayed to an employee who was sent with her wages when she did not return to work, but the finding of this fact is concededly of no importance because there is no finding and no evidence that this employee disclosed to his employer knowledge of what he had seen. The award must stand solely upon the finding that the employer and insurance company were not prejudiced "for the reason that the employer was personally notified at the time of the accident that she (claimant) had pricked her finger.' The Legislature has made it the rule that written notice of injury shall be given within ten days after disability. As we said upon the former appeal, prompt service of such notice is required "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." From the fact that the Legislature has required such notice to be given, the presumption reasonably arises that the opportunity for prompt investigation of an alleged injury is one of value. The statute, it is true, allows the failure to give this notice to be excused if it appears that the employer and the insurance company have not been prejudiced by such failure, but on principle as well as on authority the burden must rest upon the claimant who has been guilty of such default to supply the evidence and secure a finding that no such prejudice has resulted. Hayward v. Westleigh Colliery Co. (1915) A. C. 540, 546. The finding in this case does not rebut the presumption of prejudice.

It is not necessary to decide whether lack of prejudice from failure to give the prescribed notice may not be found where by verbal notice in behalf of the claimant or by other knowledge the employer is promptly advised of an injury from which a claim for compensation may be reasonably apprehended. It will be time. to consider that question when it is presented, for it is not presented here. The statement found to have been made by the claimant to her employer simply that she had "pricked her finger" is entirely insufficient as a basis for the conclusion that prejudice thereby had been obviated. There was nothing in that statement which indicated that this trivial injury was in any manner connected with or arose out of and in the course of claimant's employment, and therefore could be the basis for a possible claim of compensation. So far as that statement was concerned claimant might have pricked her finger in arranging her dress or in putting on her hat or in any number of ways utterly disconnected with her employment, and therefore there was nothing to suggest that the employer was under any of that necessity for prompt investigation which would be suggested by a written notice under the statute.

If an employee should notify his employer that his hand had been caught in a machine which it was his duty to operate the inference would naturally and promptly arise that such an injury had occurred in the course of employment, and perhaps it might be held that the employer would thereby have the same warning of a necessity for investigation that would follow from service of a written notice, and that, therefore, he would not be injured by failure to serve the latter. But it seems utterly extravagant to hold that every time an employee tells an employer that he has suffered some little hurt, which neither by its nature nor by what is said appears to be anything connected with his employment, an employer can be deemed to have been so forewarned of a coming claim and put upon investigation that he has suffered no injury from failure to give a proper and fair notice under the statute. Such is this case. If we were at liberty to consider the evidence we should feel perfectly clear that the claimant never believed that she was giving any notice of an injury under the statute. Certainly what she said could never have warranted a reasonably prudent and watchful employer in imagining any such notice.

Under these circumstances it seems to us that there is an utter lack of connection between the finding made by the commission that the respondents were not injured by failure to give the statutory notice and the act which is found as a reason and basis for such finding. It is possible that the evidence might be so construed as to sustain a general finding, if it had been made in the words of the statute, that the employer and insurance company were not injured by failure to give the statutory notice. But it is unnecessary to consider that question. The commission has put its interpretation upon all of this evidence by finding simply that the claimant did state that her finger had been pricked, although it was strenuously and stoutly denied that she did even this. But having found this as the limit of what claimant did, and having given this statement as the sole reason for the finding of lack of injury, we are presented with the question whether such finding was sufficient, and as indicated we do not think that it was. Therefore the order of the Appellate Division should be affirmed, with costs against the Industrial Commission.

Chase, Collin, Cuddeback, Pound, and Andrews, JJ., concur. Cardozo, J., dissents.

Order affirmed.

COURT OF APPEALS OF NEW YORK.

HYNES

V.

PULLMAN CO.

IN RE STATE INDUSTRIAL COMMISSION.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-NOTICE OF DISABILITY.

Under Workmen's Compensation Act (Consol. Laws, c. 67) § 18, the commission can make no award, in the absence of notice of disability unless the notice could not have been given or the employer has not been prejudiced by the failure to give it.

(For other cases, see Master and Servant, Dec. Dig. § 398.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS--NOTICE OF DISABILITY.

A claimant of workmen's compensation, who failed to give notice of disability, has the burden of supplying evidence and securing a finding that notice could not have been given or that failure to notify did not prejudice the employer.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-DISCRETION OF COMMISSION.

The Industrial Commission has a large discretion in workmen's compensation cases.

(For other cases, see Master and Servant, Dec. Dig. § 414.)

4. APPEAL. AND ERROR-WORKMEN'S COMPENSATION ACTS -APPEAL-SCOPE OF REVIEW.

If the finding of the Industrial Commission that the failure of claimant to give the required notice was not prejudicial to the employer is unanimously affirmed by the Appellate Division, the sufficiency of the evidence to sustain such finding is not before the Court of Appeals on appeal.

(For other cases, see Appeal and Error, Dec. Dig. § 1094[3].)

5. APPEAL AND ERROR-WORKMEN'S COMPENSATION - REVIEW OF FINDINGS—QUESTION OF LAW.

If with the finding of the Industrial Commission that claimant's failure to give the required notice did not prejudice the employer, facts are given upon which the ultimate conclusion is made to rest, whether these facts support the conclusion is a question of law.

(For other cases, see Appeal and Error, Dec. Dig. § 842[2].)

6. MASTER AND SERVANT-NOTICE OF INJURY.

Where employee wounded his finger and continued work until some days later his finger and arm became infected, when he reported to his employer in good faith that he had rheumatism, and he did not give written notice of the accident until more than two months after the acci

* Decision rendered, April 30, 1918. 119 N. E. Rep. 706.