Vasey v. Industrial Commission

SiebeokeR, J. The trial court held that the failure to give the plaintiffs written notice of claim for compensation as required by the provisions of sec. 2394 — -11, Stats., did not bar recovery of compensation, because it appears that there was no intention to mislead plaintiffs and that plaintiffs were not in fact misled thereby. The record is clear on the point that the evidence abundantly supports the Commission in their conclusion that there was no intention on the part of the claimants to mislead plaintiffs by the failure to give this written notice. The finding of the Commission and the holding of the trial court to the effect that the failure to give such notice did not in fact mislead and prejudice, plaintiffs is assailed upon the grounds that they were materially prejudiced by being deprived of the opportunity to investigate the claim as to whether or not Whitcomb’s injury was proximately caused by accident while he was performing services growing out of and incidental to his employment; whether or not his death was caused by an alleged former injury, and that they were deprived of the opportunity to furnish medical and surgical.aid which would have saved Whitcomb’s life. An examination of the evidence discloses that the only eye-witness to the alleged accident was a twelve-year-old son, who testified in effect that his father slipped and fell “astraddle” a log on which he stood, that he got caught between the logs, that it took half an hour to get him released, that he could not continue his work, and that it took him several hours to walk the distance of two miles to the house. It is not to be [482] presumed that plaintiffs upon inquiry would have secured a different statement of facts from this boy than that to which he testified or that the facts and circumstances of the occurrence and nature of the injury were materially different from those that were disclosed by the evidence given before the Commission. We think the Commission was well justified in concluding that plaintiffs were not prejudiced in this respect by the failure to receive a written notice of the accident. The claim that Whitcomb’s death was caused by a former injury is wholly unsupported. The wife’s evidence that she never heard of this alleged former injury, which it is said he suffered after marriage; that he never complained thereof; and the son’s denial of an alleged admission by him that his father had suffered such a former injury, on which this claim rests, is ample basis for the Commission to find that there is no proof of such fact. It is strenuously contended that if plaintiffs had received the required written notice they would have furnished prompt medical aid and that Whitcomb’s life, in all probability, would have been saved. The trial court concluded that, in view of the undisputed fact that Vasey was notified by letter by Whitcomb within thirty days after the accident that Whitcomb had been sick for two weeks in bed and requested Vasey to come to see him, and that Vasey replied within the thirty days that he could not then come to see him but that he would come later, in connection with all the conditions surrounding the parties, the Commission was justified in finding as a fact that the necessary medical and surgical aid would not have been furnished to save Whitcomb’s life. It must also be borne in mind that had the claimant served a notice of injury on the last of the thirty-day period prescribed by statute it is reasonably clear that Whitcomb’s condition was such that any medical and surgical aid would have been unavailing to save his life. Upon the record it cannot be said that there is no substantial credible evidence to support the find [483] ings of the Commission on the questions presented. The judgment of the circuit court must he affirmed. By the Court. — It is so ordered. Owen, J., took no part.