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dent, a finding of the State Industrial Commission that the employer was not prejudiced by failure to give notice "for the reason that there was no one present when the accident occurred, and therefore the employer could obtain no affirmance or denial of the fact of the accident, and for the further reason that as soon as evidence of infection appeared," the employee "was under the care and attention of a duly authorized medical practitioner," was not supported by the facts, for, since blood poisoning may result from any slight prick or scratch or bite of an insect, absence of witnesses would require rather than excuse notice.

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

Pound and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Proceeding by Dennis E. Hynes for workmen's compensation, opposed by the Pullman Company, employer. From an order of the Appellate Division (166 N. Y. Supp. 1099), unanimously affirming an award of the State Industrial Commission in favor of claimant, the employer appeals. Reversed and claim dismissed.

John Godfrey Saxe, of New York City, for appellant.

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

ANDREWS, J. On May 5, 1916, Dennis E. Hynes wounded his finger with a tack while engaged as a car cleaner. He continued his work until May 11. By that time his finger and arm had become infected, but he reported to his employer in good faith that he had rheumatism. He later underwent several operations. He did not give written notice of the accident until July 28th. Under these circumstances the commission finds that the employer was not prejudiced by the failure to give notice "for the reason that there was no one present when the accident occurred, and therefore the employer could obtain no affirmance nor denial of the fact of the accident, and for the further reason that as soon as evidence of infection appeared, Hynes was under the care and attention of a duly authorized medical practitioner."

[1, 2] This court has already said that the written notice required by section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67) is not a mere formality to be dispensed with as a matter of course. The act is definite as to the powers of the commission. It may make no award in the absence of the notice unless for some reason it could not have been given, or unless the employer has not been prejudiced by the failure to give it. The burden rests upon the claimant who has been guilty of the default to show the facts and secure a finding that entitles him to an award. Matter of Bloomfield, 119 N. Ě. 705.

[3] Where, as here, the notice might have been given and is not, the ultimate fact upon which the award must rest is that the employer is not prejudiced. If such a general finding, supported by any evidence, is made, doubtless all the appellate courts are bound by it. The commission has a large and undefined discretion. This the Legislature intended to confer upon it. We may not assume

that it will abuse its power. Unless it is honestly satisfied, after weighing all the probabilities, that no prejudice has been suffered, its duty will be to uphold the statutory bar.

[4-6] If such a finding is made and is unanimously affirmed by the Appellate Division, the question as to whether it is supported by any evidence is not before this court. But no such finding has been made in the case before us. The facts are given upon which the ultimate conclusion is made to rest. Whether these facts support the conclusion is a question of law. We do not think that they do. For more than two months the employer was not warned of the alleged accident or its alleged results. For that time he was deprived of the opportunity of investigating the claimant's story and of determining for himself the sequence of events, and whether the septicemia from which the claimant suffered did, in truth, result from the scratch. The logic of the commission seems to be as follows: Because the claimant tells the truth as to his accident; because no one was present to contradict him; because later blood poisoning developed and developed as a result of the injury; because a licensed physician attended him who was presumably competent-no investigation could have been useful to the employer. This is reasoning in a circle. Notice and consequent chance of investigation is given for the very purpose of enabling the employer to test the good faith of the claimant. Without it no contradiction is possible. If many are present at the time of the alleged accident; if their stories agree; if there is no doubt of the injury and its resultsthere may be a basis of the finding that lack of notice did no harm. But assume that the injury was so slight as not to cause attention at the time; that no physician was called for 11 days; that the accident is remembered only after the lapse of 6 or perhaps 13 days; that blood poisoning may result from any slight prick, any scratch, any bite of an insect, then the absence of witnesses would seem to require rather than to excuse notice.

The order of the Appellate Division and the award of the commission should be reversed, and as all the facts were before the commission and were interpreted by it so as not to adınit a recovery, the claim should be dismissed, with costs in all courts. against the Industrial Commission.

I'OUND, j. (dissenting). The unanimous affirmance of the finding of the Industrial Commission that the employer was not prejudiced by the failure of the employee to give notice of injury is final. No question of law survives. "A speculative and insubstantial suggestion of prejudice," as Lord Summer says in the Hayward. Case ([1915] A. C. 540, 547-8) is not enough.. It is not open to this court to conjecture that the employer, with notice might have done something which would have changed the result. Prejudice means disadvantage. How and why did disadvantage arise in this case? Would other inquiries or other treatment have

been to the employer's advantage? Looking at all the matters before it, the commission answers this question in the negative and finds that the employér is no worse off than it would have been with notice. The judgment appealed from should be affirmed. Hiscock, C. J., and Chase, Collin, and Cuddeback, JJ., concur with Andrews, J. Pound, J., reads dissenting opinion, and Cardozo, J., concurs.

Order reversed, etc.

COURT OF APPEALS OF NEW YORK.

LITTLER
ข.

GEORGE A. FULLER CO.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -SCOPE OF EMPLOYMENT.

Where employer, on demand of employees for free transportation from railway station to place of building a house, hired a truck to carry them to and from work, an employee injured while in such truck on the way to the station was injured within the scope of the employment under the Workmen's Compensation Law (Consol. Laws, c. 67).

(For other cases, see Master and Servant, Dec. Dig. § 375[2].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION.

Where the evidence showed that a bricklayer averaged about 30 weeks' employment in each year, compensation for injuries should be awarded on the basis of his actual earning capacity under Workmen's Compensation Law, § 14, subds: 3, 4, and not on the basis of 300 times his daily pay under subdivision 2.

(For other cases, see Master and Servant, Dec. Dig. § 385[1].)

Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Law by William Littler to obtain compensation for injuries, opposed by the George A. Fuller Company, employer. There was an award by the State Industrial Commission for the loss of left leg, which was affirmed by the Appellate Division, Third Department, of the Supreme Court (168 N. Y. Supp. 1116), and the employer, by permission, appeals. Reversed, with directions.

E. Clyde Sherwood, of New York City, for appellant.

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

POUND, J. [1] Littler, the claimant, was a bricklayer. At the time he was hurt he was working for George A. Fuller Company. * Decision rendered, May 7, 1918. 119 N. E. Rep. 554.

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It was constructing a residence at Great Neck, L. I., two miles from the railroad station. The workmen, who came out by train, had refused to remain on the job unless the employer would furnish free transportation to and from the work from and to the railroad station. The employer hired an automobile truck to take the employees, morning and night, to and from their work. At the end of the day's work on May 22, 1917, when the truck was making its trip to the station, it went into the ditch. Littler was thrown off and injured.

*

The Industrial Commission properly held that the injuries arose out of and in the course of Littler's employment. The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was "on his way from his duty within the precincts of the company." De Voe v. N. Y. State Railways, 218 N. Y. 318, 320, 113 N. E. 256, L. R. A. 1917A, 250. The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded. Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778; Cremins v. Guest, [1898] 1 K. B. 469; Stewart & Son v. Loughwest, [1917] A. C. 249. The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck.

[2] The average weekly wage of Littler was computed by the commission under subdivision 2 of section 14 of the Workmen's Compensation Law (Cons. Laws, c. 67), with the result that the award is based on annual earnings of 300 times his daily wage. No finding that bricklayers work substantially the whole of the year was made. The evidence is to the effect that they average about 30 weeks of employment at their trade in each year. Three hundred days' work in the year is the standard of steady employment. "The average weekly wages of an employee shall be one fifty-second part of his average annual earnings." Section 14, subd. 4. The award should not exceed two-thirds of the earning capacity. Average annual earnings are computed under subdivisions 1, 2, or 3 of section 14, as the case requires. If the nature of the employment does not permit steady work during substantially the whole of the year the annual earning capacity of the injured employee in the employment is the proper basis of compensation. Section 14, subd. 3. The true test is this: What were the average weekly earnings, regard being had to the known and recognized incidents of the employment, including the element of discontinuousness? Anslow v. Cannock Chase Colliery Co., [1909] A. C. 435.

In Minniece v. Terry Bros. Co., 223 N. Y. — 119 N. E.

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the question was as to the the average earning capacity of the injured man as a brick molder. It did not appear that brick molders in the locality did not work substantially the whole year. The computation was properly made under section 14, subdivision 2, on the basis of the occupation in which Minniece was engaged at the time of the accident, rather than on the basis of his actual earnings in the year preceding.

The order of the Appellate Division should be reversed and the proceeding remitted to the State Industrial Commission to compute the average weekly wage of claimant on the basis of his actual annual earning capacity.

Hiscock, C. J., and Collin, Cuddeback, Cardozo, Crane, and Andrews, JJ., concur.

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LAW-AWARDS-LEGISLATIVE DISCRETION.

The entire matter of awards under the Workmen's Compensation Law (Consol. Laws, c. 67) is committed to legislative discretion.

(For other cases, sec Master and Servant, Dec. Dig § 347.)

2. MASTER AND SERVANT-WORKMEN'S LAW-AWARD FOR DISFIGUREMENT.

COMPENSATION

Under Workmen's Compensation Law (Consol. Laws, c. 67) § 15, subd. 3, added by Laws 1916, c. 622, the Industrial Commission may make an award to an injured employee for serious facial or head disfigurement, though it does not impair the earning capacity of the employee, the amount to be such as the commission deems proper and equitable in view of the disfigurement, not exceeding $3,500.

(For other cases, see Master and Servant, Dec Dig.`§ 385[1].)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW AWARDS FOR DISFIGUREMENT AND LOSS OF EARNING POWER.

Concurrent awards may be made to an injured employee under Workmen's Compensatoin Law, one for serious facial or head disfigurement, and one for disability or loss of earning power, when it should clearly appear that the award for facial or head disfigurement does not include anything for diminution of earning power.

(For other cases, see Master and Servant, Dec Dig. § 385[1].)

* Decision rendered, May 7, 1918. 119 N. E. Rep. 555.

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