McCollor's Case

Deasy, J. Section 17 of the Workmen’s Compensation Act (Laws of 1919, Chapter 238) provides that “no proceedings &c. shall be maintained” unless the claim for compensation with respect [137] to such injury shall have been made within one year after the occurrence of the same. It is conceded that the petitioner made no claim for compensation for more than a year following the happening of the accident. The defendants contend that the injury occurs and the year during which the claim must be made begins to run at the happening of the accident causing the injury. The petitioner argues on the other hand that the injury occurs when it results in incapacity and so becomes compensable. This defense, if valid, is not available. Section 32 of the Act requires the defendants to “file an answer to said petition .... which answer shall state the claims of the opponents with reference to the matter in dispute as disclosed by the petition.” The right to compensation is the matter in dispute so far as disclosed by the petition in this case. The defendants now contend that the right is barred by failure on the part of the petitioner to perform a condition precedent, to wit, to make a claim within one year. But the answer filed by the defendants does not state this claim. The answer denies that the petitioner received a personal injury by accident arising out of and in the course of his employment by the defendant employer, or that the accident happened as stated, or that it resulted in hernia. It does not inform the petitioner that a breach of condition on his part will be claimed. Under the issues as made by the petition and answer the petitioner was not required to produce any evidence upon this point. The breach of condition (assuming that a breach is shown) does not avail the defendants. Mitchell’s Case, 121 Maine, 460; see also Storrs v. Ind. Com., (Ill.), 121 N. E., 267; Roach v. Kelsey Wheel Co., (Mich.), 167 N. W., 35; Baldwin v. McDowell, (Ind.), 135 N. E., 389; Lumber Co. v. Pillsbury, (Cal.), 161 Pac., 982; Ackerson v. Zinc Co., (Kan.), 153 Pac., 530. Appeal dismissed. Decree affirmed.