Claim of Finch v. Buffalo Envelope Co.

Cochrane, P. J. (dissenting).

Written notice of injury was not given. The Board has excused the failure as follows: “ Inasmuch as claimant reported his accidental injury to his superintendent, Mr. Frank Capenhurst, on the same morning that the accident happened, the employer had actual knowledge of the accident to claimant and, therefore, was not prejudiced by claimant’s failure to give written notice of injury.” Knowledge of the accident by the employer is a statutory ground of excuse. So also is lack of prejudice by the employer. Neither of these facts, however, has been unqualifiedly found by the Board but each has been predicated on the verbal report of the accident. Because the claimant told his superintendent of his injury says the Board, therefore, the employer had knowledge, and was not prejudiced. It may well be argued that knowledge does not necessarily follow from what one is told. Whether information thus received ripens into knowledge by the recipient depends on whether the latter believes or accepts such information. But my criticism of this form of excuse is that it may be used in every case where verbal notice is given and verbal notice hence becomes equivalent to written notice and the statutory requirement as to written notice is destroyed. A claimant may tell his employer about his accident and in every such case as in this case the Board may find that “ inasmuch ” or because claimant gave this verbal notice the employer had knowledge and was not prejudiced. Knowledge by the employer and lack of prejudice are not made to depend on the nature of the verbal notice and of the information thus conveyed but solely on the fact that a verbal notice was given irrespective of its value. A verbal notice may thus in all cases take the place of a written notice. What was said on this point in Dorb v. Stearns & Co. (180 App. Div. 138, 141) is pertinent here notwithstanding subsequent amendments to the statute.