This is a petition under the Workmen's Compensation Act brought by Thomas L. Donahue of Stonington, in the State of Connecticut, asking for compensation for alleged injuries received by him while in the employ of the respondent, the R.A. Sherman's Sons Company, a corporation organized under the laws of Rhode Island and located and doing business in Westerly, in said State of Rhode Island. The respondent corporation is a contractor and builder and the petitioner, at the time of the alleged injury, was in the employ of the said respondent as a carpenter.
The petitioner claims that on the 23rd of October, 1914, while he was engaged with others in attempting to place one of the corner posts of a large dwelling house, in process of erection by the respondent, said post, after it had been brought to a perpendicular position, started to fall and that in his endeavor to arrest it he sustained a strain. There is some conflict of testimony as to the date when the accident happened, the petitioner claiming that it was on Friday, October 23, 1914, while other witnesses give the date as Friday, October 16, 1914. The Superior Court seems to have adopted October 23 as the more probable date of the accident and I do not think it necessary to discuss the conclusion of the trial court in that regard.
The accident, the petitioner says, occurred shortly after the noon hour and that upon its occurrence he ejaculated, in the presence of the respondent's foreman, "I think I got something that time." He continued however to work the remainder of the day, apparently without making any complaint, although he says he did not feel well. He consulted a doctor in the evening of the same day, October 23, and he received further medical advice and treatment at different times, covering a period of a week, after which, on the 31st of October, he went to a hospital at Norwich, Connecticut, where he was operated upon for a fecal fistula located in the vicinity of the navel. He remained in the hospital until November 23. The trial court did not *Page 393 find that the fistula resulted from the accident, but that the accident accelerated conditions already existing and brought about an earlier operation than otherwise would have been necessary.
It appears from the testimony that during the week prior to his entering the hospital the petitioner visited the office of his doctor on two occasions; that he complained at his home that he had received an injury; and that at least a week before he left the hospital, November 23, 1914, he discussed the subject of his injuries with the doctor there.
The petitioner gave no notice of his injury to his employers until the 20th of December, 1914, when he claims to have given them notice verbally which was followed by a notice in writing about a month later. There is no satisfactory evidence that the respondent was in any way made aware that the petitioner had suffered or claimed to have suffered any injury while in its employ prior to the verbal notice.
The Workmen's Compensation Act, under which this petition is brought, provides that, "No proceedings for compensation for an injury under this act shall be maintained unless a notice of the injury shall have been given to the employer within thirty days after the happening thereof. . . ."
This provision is designed to afford some protection to the employer; to seasonably appraise him of the accident and enable him to make such investigation thereof as he may desire while the surrounding circumstances are fresh in the minds of witnesses. The giving of this notice within thirty days is a condition precedent to the maintenance of any proceedings looking to the recovery of compensation, and the petitioner does not claim that any such notice was given within the period of thirty days following the accident. The petitioner contends however that during the thirty days following the injury he was incapacitated by reason of his illness from giving such notice and that he was consequently excused from so doing under another provision of the act which says that: "Want of notice shall not be a *Page 394 bar to proceedings under this act, if it be shown . . . that failure to give such notice was due to accident, mistake, or unforeseen cause." Upon this point the trial court found that it was "doubtless true that the petitioner could, if it had occurred to him, have sent word from the hospital to the respondent company during the last week or ten days of his stay there," and I think that such finding was justified by the evidence. The trial court however proceeded further saying, "but considering all the circumstances of the case the court does not believe itself justified in charging him with neglect by reason of failure so to do." I think that this last finding or conclusion of the trial court was erroneous. If the petitioner failed to give the required notice because he did not think of it or having thought of it neglected to do it, I cannot conceive of any circumstances which would justify the trial court in waiving or disregarding the provision of the act regarding notice which, as before stated, is a condition precedent to the maintenance of any proceeding for compensation. A statute of this character must be strictly construed. In Massachusetts where the employers' liability act contained, before its amendment, a provision regarding notice to the employer of the same tenor and in substantially the same language as that of our own act, the courts have given it a strict construction.
In Healey v. Blake Mfg. Co., 180 Mass. 270, where the employer was a foreign corporation and the employee served a notice upon the Commissioner of Corporations who within thirty days sent a copy to the corporation, such commissioner being the attorney of the corporation upon whom legal process might be made, the court held that it was not a notice to the corporation under the act requiring a notice to be given to the employer within thirty days. In its opinion the court said: "This notice is similar to that required in the case of injuries received by reason of defects in highways, and is a condition precedent to the right of action. It is not simply one of the steps in enforcing a right of action already existing, but is the last circumstance necessary to the creation *Page 395 of such a right. The liability is not complete until the notice is given."
In Grebenstein v. Stone Webster EngineeringCorporation, 209 Mass. 196, it was held that a letter from an attorney of the plaintiff to the defendant, advising the latter of the injury and suggesting a conference looking to an adjustment of the claim, was not sufficient as a notice under the statute. The court said: "The notice required by statute is a condition precedent to a right of action. Any right of action which the plaintiff otherwise would have had is lost if he fails to give a sufficient notice."
Forgetfulness or neglect is not accident, mistake, or unforeseen cause within the meaning of those terms as they have been construed by this court. Haggelund v. Oakdale Co.,26 R.I. 520; Seward v. Johnson, 27 R.I. 396; Allen Reed v.Russell, 33 R.I. 422.
Having found, upon the evidence presented that the petitioner might have given the notice had it occurred to him to do so the trial court should have denied and dismissed the petition.
The trial court has referred to some of the English cases in support of its finding that the petitioner was excused from giving notice of his injury, to wit.: Hoare v. Arding Hobbs, 5 B.W.C.C. 36; Eaton v. Evans, 5 B.W.C.C. 82; Fry v. Cheltenham, 5 B.W.C.C. 162. In examining these cases it will be found that the act under which they were brought confers upon the court a much more liberal exercise of discretion than is conferred upon our courts under our compensation act. The English courts are specifically authorized by the act to consider (1) whether the respondent has been prejudiced by the delay and (2) whether there was reasonable cause for the delay.
Under our compensation act the only ground upon which the failure to give notice may be excused is that of accident, mistake or unforeseen cause. These words must be presumed to have been used, in the compensation act, with the same meaning with which they have heretofore been used in *Page 396 other statutes and as they have been heretofore construed and interpreted by this court. Under our compensation act the giving of notice being a condition precedent to the maintaining of proceedings, the reasonableness of the delay and the prejudice of the employer cannot enter into the consideration of the court. The only question is has the petitioner given the required notice or has he failed to do so by accident, mistake or unforeseen cause, giving to those words the meaning which has heretofore been conceded to them.
In considering the question of notice the English courts have held that ignorance of the act or its provisions, on the part of the petitioner, cannot be considered as a reasonable cause for delaying the notice beyond the period fixed by statute. Judd v.Metropolitan Asylum Board, 5 B.W.C.C. 420.
The trial court has found that the petitioner could have given the notice if it had occurred to him to do so, which is equivalent to saying that he could have done so had he thought of it or if he had not neglected it.
I think that the respondent's appeal should be sustained.