(dissenting). This case presents a serial story involving a tragedy for the victim of a work accident. It is a story of the law’s delays, in which it seems to me that technicality has been exalted through a process of metaphysical reasoning to reach a nicety of distinction that is impractical and impossible in administration and contrary to the legislative intent. It works injustice and violates the principles and purposes of the compensation act.
*339Nearly six years ago Frank Goetsch, a workman on a building in course of construction, was injured by a board with a spike in the end falling from a height, striking him on the head so that the spike penetrated the skull. He was assisted by a fellow-workman, who removed the board, whereupon blood spurted out of the wound, and the foreman was called. The foreman was in full charge of the work with authority to hire and discharge employees. In fact he was the manager on the job of the corporation employer. The foreman examined the wound of the injured man and pronounced it of a minor nature. Goetsch developed thereafter a paralysis of the right side of the body as a result of a slow venous hemorrhage of the brain, which became, and is, incurable; and Goetsch became totally disabled to do ’any work since within a few days after the accident.
Goetsch gave his employer no written notice of the injury within thirty days, for two reasons: he did not realize the nature of his ailment; he did not know the requirement of the law as to notice.
Goetsch was injured June 16, 1917, and made claim for compensation April 24, 1918. In the meantime he had been treated by his family physician and examined by a doctor representing the carpenters’ union to which Goetsch belonged. The Industrial Commission heard the claim, the Hartford Accident & Indemnity Company, insurer, defending for the employer, beginning May 23, 1918, and concluding January 24, 1919. The Commission entered its findings and award May 24, 1919. It found that “no written notice of the accident and claim was given within the thirty days fixed by statute, but the respondent [the employer] had immediate actual notice of such injury, and the failure of the applicant to give written notice was without intent on his part to mislead the respondent, and the respondent was not in fact misled thereby.” July 19, 1919, the employer, through its insurance carrier, brought an ac*340tion in the circuit court to review such findings and award. On March 3, 1920, the circuit court, by Judge SteveNS, in an able opinion affirmed the action of the Industrial Commission. April 2, 1920, the employer, through the insurance company, appealed to this court from the judgment of the circuit court, and in the usual course of time, November, 1920, this court reversed the circuit court (172 Wis. 548, 179 N. W. 740), on the ground that notice to the foreman did not constitute notice to the employer within the terms of the statute. As'I read the findings of the Commission, it made no such claim. It expressly held that no written notice was served on the employer. However, the Commission found that “failure of the applicant to give written notice was without intent on his part to mislead the respondent, and the respondent was not in fact misled thereby.” This express finding of the Commission the court seemed to overlook because it sent the case back with an instruction “to make a finding upon the question of whether there was any intention to' mislead and if the employer was in fact misled by such failure to give the notice.” This is important to note. The case had to go back to the Commission to find on the same identical question upon which it had already found in the identical language of the statute. The words of the statute (sec. 2394 — 11) are:
“The failure to give any such notice . . . shall not be a bar to recovery . . . if it is found as a fact . .. . that there was no intention to mislead the employer, and that he was not in fact misled thereby.”
So the case went back to the circuit court, where the judgment was vacated and the records returned to the Commission. Evidently the Commission was nonplussed. It wrote a memorandum, in which it explained why there was no misleading of the employer by failure to give written notice, in these words:
“There was no misleading of the employer because of the lack of written notice, unless it be predicated on the loss *341of opportunity to observe the case and have treatment rendered by surgeons alleged to be more skilled. This we do not think constitutes a misleading within the purview of the statutes.”
The Commission made new findings of fact. January 5, 1922, in which it again found “that the applicant failed to give written notice of his injury and claim.; that.such failure was without intent on his part to mislead the employer and the employer was not in fact misled thereby.” Again the case was taken to the circuit court for review, and on December 23, 1922, the circuit court, by Judge Thompson, in a clear and able opinion, sustained the award of the Commission. Again the case was appealed to this court, where in due course it came up for decision, and on April 3. 1923, this court again reversed the judgment of the lower court and directed that the cause be remanded with instructions to the Commission “to make a finding upon the question whether or not the employer was misled by failure to give the written notice.” Again we call attention to the fact that the Commission has already twice found “that the employer was not in fact misled thereby.”
The court evidently thought the Commission was contumacious in its memorandum. I do not so regard the action of the Commission. The Commission labored too industriously, perhaps, to make plain its position, which is misunderstood here. To me the court’s opinion is the more confusing. The court cites sec. 2394 — 12, Stats., to show that the employer may have been misled because the legislature there provided for an examination of the injured man from time to time upon written request, and suspending compensation in case of refusal. The statute has no application in case whatever. The employer never made such a request and the injured man never refused such a request. It is too plain for dispute that the workman did'not realize the cause of his ailment until some nine months after the accident. For. this reason he did not and could not give *342the notice. It is equally true that the purpose of the notice is to give the employer the opportunity to ascertain the facts and to preserve the evidence. Here there is no contention that the employer had been prejudiced by inability to ascertain the facts or to produce evidence. Its foreman knew of the'accident at the time. He knew all that the workman knew. He did not consider the injury serious, neither did the injured man. The injury produced a slow venous hemorrhage of the brain, but the workman nor the doctors who attended him made no connection between his ailment and his accident. In other words, the doctors failed to properly diagnose the case. But the emplo}^er was not legally prejudiced, because it lost no evidence and no opportunity to prove its case. The foreman was produced and testified at the hearing. The only witness of the accident, a fellow-workman of the injured man, was also produced and testified. Experts were present to give evidence as to the nature of the injury and as to whether it was proximately caused by the accident. It was from the evidence so produced that the Commission found that the employer was not misled by failure'to give the written notice. Its construction of the law I think was clearly right. The statute gives the employer no right to treat the injured workman for his ailment. The workman must use reasonable care to cure his ailment, and this he did when he consulted a duly licensed physician and followed his advice.
It will not do to twist sec. 2394 — 12 from its fundamental purpose in order to deny the injured man compensation. The intent of the statute is too plain for construction. The purpose of the statute as to notice is equally obvious. It has the same purpose as the statute requiring notice within two years of a claim for personal injury under a common-law action (sub. (5), sec. 4222, Stats.), or the notice required in one year in actions against railroad companies for injuries to property (sec. 1816&, Stats.). The danger of loss to workmen by the unusually short limitation of thirty days *343in the compensation act was guarded against by the proviso that in case of failure to give such notice the claim for compensation shall not be barred if the Commission shall find in the proceedings that such failure was without intent to mislead the employer, and the employer was not in fact misled thereby. And it is further provided that “the findings of fact made by the Commission acting within its powers shall, in the absence of fraud, be conclusive.” In this case the Commission has twice made the finding of fact that the employer was not misled by such failure, and that finding of fact was intended by the legislature to be conclusive on this court. The effect of the decision of this court will be to put confusion into the law where there was certainty before, and to endanger many just claims for compensation because of the short statute of limitations on notice of injury. Of course, no good reason can be given for the unjust discrimination as to common-law, actions and compensation claims as to time of notice, if the power of the Commission to relieve from failure to give notice is to be restricted by the interpretation the court seems to- give to sec. 2394 — 12, Stats.
But whatever is the construction of the statutes there should be an end of this protracted proceeding. Sec. 3072m, Stats., is designed to bring about this very desirable purpose.
I cannot see how the mandate of the court to send this case back for another round of argument, appeals, and dilatory proceedings can be justified. For nearly six years a workman has been a helpless invalid as a result of an industrial accident under the compensation act.' For five years his claim has been shuffled back and forth in a maze of legal intricacies, and the end is nowhere in sight. I believe the law’s delay is being made an instrument of oppression and injustice in this case.
For the reasons stated I respectfully dissent.