Frank Martin-Laskin Co. v. Goetsch

172 Wis. 548 | Wis. | 1920

Owen, J.

Sec. 2394 — 11, Stats.,'provides:

“No claim to recover compensation under sections 2394 — 3 to 2394 — 31, inclusive, shall be maintained unless, within thirty days after the occurrence of the accident which is claimed to have caused the injury or death, notice in writing, stating the name and address of the person injured, the time and place where the accident occurred, and the nature of the injury, and'signed by'the person injured or by some one on his behalf, or in -case of his death, by a dependent or some one on his behalf, shall be served upon the employer, either by delivering to and leaving with him a copy of such notice, or by mailing to him by registered mail a copy thereof in a sealed and postpaid envelope addressed to him at his last known place of business or residence. Such mailing shall constitute completed service; . . . and provided, further,'that the failure to give any such notice, or any defect or inaccuracy thterein, shall not be a bar to recovery . . . if it is found as a fact in the proceedings for collection of the claim that there was no intention to mislead the employer, and that he was not in fact misled thereby.”

The questions here presented arise from the fact that no written notice of the injury was served upon the employer as required by the provisions of the section of the statutes above set forth. -The Indtistrial Commission found that the employer had actual notice by reason of the presence of the foreman at the time of the accident. The correctness of this conclusion is assailed by appellants on two grounds: First, that under sec. 2394 — 11 notice to the foreman was not notice to the employer; and second, that even though notice to the foreman be notice to the employer, yet, under the circumstances of this case, the foreman did not have knowledge of the facts which the statute contemplates shall be brought home to the employer by service of the required written notice; the contention as to the latter proposition being that while the foreman knew of the happening of the accident he had no knowledge concerning the nature of the injury resulting therefrom.

The statute requires that the written notice shall state the nature of the injury. From what the foreman was able to observe the injury appeared to be nothing more than a slight wound of the scalp. The serious or compensable injury developed after the employee had been discharged from his employment, the result being that neither the employer nor the foreman had knowledge of the fact that compensable injury.had resulted from the accident. By requiring the notice to state the nature of the injury the legislature undoubtedly had some purpose in mind, and the contention that its purpose was to bring home to the employer the fact that compensable injury under, the act had resulted from accident is by no means frivolous. The act deals with injuries resulting in loss to the employee. It is not concerned with injuries of a trifling nature resulting in no disability to the employee. There is much force to the contention that unless compensable injury resulted from the accident there is no point in giving the notice. However, the notice must be given within thirty days, and it may be giyen at any time within the thirty days. It may be giyen the day after the happening of the accident and meet the statutory requirements. It is matter of common knowledge that serious consequences develop from injuries which appear to be of a slight and trifling nature. To give the statute the construction contended for would mean that where the serious consequences had not sufficiently developed to indicate a compensable injury within thirty days so that an injury entitling the employee to compensation could be stated in the notice, the employee would have no claim for compensation. We are reluctant to give the statute such a construction. There is no reason to believe that the legislature intended to provide compensation only for those injuries which developed within a period of thirty days. The statute should be liberally construed to attain the accomplishment of its beneficent purposes. Sadowski v. Thomas F. Co. 157 Wis. 443, 449, 146 N. W. 770; Kiel v. Industrial Comm. 163 Wis. 441, 445, 158 N. W. 68.

We are therefore’ of the opinion that where the employer has notice that an accident has happened and that some injury, no matter how -trifling, has resulted to an employee by reason thereof, he has the knowledge that it was intended should be brought home to him by the service of the written notice. Of course it must be understood that the nature of the injury should be described as fairly as possible under the facts and circumstances existing at the time, the notice is given.

We are of the opinion that under the provisions of our statute notice to the foreman does not constitute notice to the employer. The statute expressly requires the notice to be served on the employer. It “shall be served . . . either by delivering to and leaving with him a copy of such notice, or by mailing to him by registered mail a copy thereof in a sealed and postpaid envelope addressed to him at his last known, place of business or residence.” Where the employer is a corporation, this requirement can be satisfied only by serving on a managing officer of the corporation. Under the provisions of this statute there is no room for saying that the knowledge of the foreman is imputed to the employer. The common-law principles of negligence which make the knowledge of the foreman the knowledge of the employer have no application here. The legislature has seen fit to require notice of the accident and the injury to be given to the employer personally. A notice served on the foreman does not comply with the requirements of the statute. Apparently the object of the statute is to bring home to the employer personal knowledge of the accident and injury. Knowledge of a foreman is not knowledge of the employá? within the contemplation of this statute and does not take the place of the notice unless it be shown that the knowledge of the foreman was communicated to the employer. This does not appear. Under the statute quoted this will bar a recovery unless the Commission finds as a fact that there was no intention to mislead the employer and that he was not in fact misled by failure to give the notice. This question was not passed upon by the Commission, and it will be necessary to remand the case to the Commission for the purpose of making a finding thereon.

By the Court. — Judgment reversed, and cause remanded to the circuit court with directions to set aside the award and to remand the record to the Industrial Commission with instructions to make a finding upon the question of whether, there was any intention to mislead and if the employer was in fact misled by failure to give the notice. No costs to be taxed.