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had been obtained at or about the time it occurred, written notice would have been excused. In another case there is a suggestion that where the employer asserted full knowledge of the accident and injury, warranting the inference that he actually acquired, through the foreman or otherwise, information which was fully as illuminating as any he might have received by written notice, it would excuse the failure to give formal notice of the injury, but it was no legal excuse for a failure to file the claim for compensation with the commission. In two cases, where a fellow employee told the foreman of an injury to another employee who later died, the employer was held to have statutory knowledge. In other cases, where the evidence showed that the employer had the knowledge or information which the notice was designed to give, the failure to give written notice was excused without any inquiry into the means by which it was acquired. 6a


As to the second ground of dissent, it is true that verbal notice is not a statutory ground of excuse for failure to give written notice of injury. It has been held, however, that where verbal notice was given at the time of the injury, or after the accident to the foreman, the failure to give written notice was excused because the employer was not prejudiced. In Bloomfield v. November,1o the court, in discussing verbal notice, said, . . if the commission were influenced in excusing the failure to serve a written notice on the ground that prompt and full verbal notice had been given and, therefore, no harm had been suffered, it ought to have passed fairly and explicitly on this question of fact . . .". If oral notice can be taken into consideration in determining whether an employer has been prejudiced, it should also be taken into consideration in determining whether he or his or its agent has knowledge. As authority for the second objection Dorbs v. Stearns" is cited. There it was held that to permit oral notice would nullify the statutory requirement of written notice.

"Twonko v. Rome Brass & Copper Co., 183 App. Div. 292, 170 N. Y. Supp. 682 (3d Dept. 1918) as reversed in 224 N. Y. 263, 120 N. E. 638 (1918). "Svanberg v. Golden Gate Mfg. Co., 21 St. Dept. Rep. 459 (1919); Insana v. Nordenholt Corp., 193 App. Div. 1, 183 N. Y. Supp. 83 (3d Dept. 1920).

"Hill v. Ancram Paper Mills, 202 App. Div. 36, 195 N. Y. Supp. 522 (3d Dept. 1922). When this case was before the commission it appeared that verbal notice had been given to an assistant superintendent, 27 St. Dept. Rep. 262 (1922); Hunko v. Buffalo Crushed Stone Co., 203 App. Div. 284, 196 N. Y. Supp. 569 (3d Dept. 1922).

The instant case, at page 747, cites Thurber v. Pennsylvania Railroad, 216 N. Y. Supp. 927 (3d Dept. App. Div. 1926); by it the award was unanimously affirmed. There the employer was held not prejudiced by failure to give written notice because the agent had knowledge which was gained by oral statement. This case seems to be in point; it unfortunately appears only as a memorandum opinion in the report of the case.

"Leoine v. General Electric Co., 215 App. Div. 736, 212 N. Y. Supp. 88 (3d Dept. 1925).

Mooney v. Delmonicos, 231 N. Y. 623, 132 N. E. 913 (1921); Phelan v. Bliss Co., 14 St. Dept. Rep. 585 (1917).

'Kavanaugh v. General Electric Co., 229 N. Y. 615, 129 N. E. 930 (1920). 10219 N. Y. 374, at 377, 114 N. E. 805 (1916).

"180 App. Div. 138, 167 N. Y. Supp. 415 (3d Dept. 1917). In re Gibbons, 181 App. Div. 142, 168 N. Y. Supp. 412 (3d Dept. 1917), follows the Dorbs Case,

That case was decided before the act was amended to include the second ground of excuse. The court in that case must have been guided by the fact that the foreman, who received the notice, failed to convey the information to his employer," and the verbal notice was clearly insufficient. It said that if the information had been passed on to the employer in such a way as to arrest his attention and excite it into activity with reference to the accident, that is if the purpose of the statutory notice had been accomplished, these circumstances, but not the oral notice, might have been grounds for excusing the claimant's default. Accordingly, even before the amendment this court might have excused written notice, if the employer had acquired knowledge through a secondary source, after having been put upon enquiry by oral notice. The decision in Finch v. Buffalo Envelope Co. does not make oral notice necessarily the equivalent of written notice, but it makes it evidence upon which a finding of knowledge within the meaning of the statute can be predicated, either because of the sufficiency of the notice itself in conveying the facts, or because the employer upon receiving the oral notice, in the exercise of reasonable caution, was bound to investigate.

An examination of the statutes and decisions in other states in which the question has arisen discloses that the result in the instant case is in accord with the better authority. In Alabama, the statute11 is silent as to knowledge of the accident as an excuse for failure to serve written notice, yet it has been held1 that if the injury occurred under the eye of the employer, or if all the facts have been brought to his knowledge within the time written notice is required, he can suffer no injury, and written notice is unnecessary, for then "... the giving of notice becomes a matter of technical form, a trap for the helpless and unadvised." The experience of California is enlightening on this question. The act, as amended in 1915,16 was construed1 to require actual knowledge, any other than first hand knowledge being insufficient. The Legislature must have realized the unsoundness of such a policy, and in 1917 amended the act18 to require notice in writing, provided that "... knowledge of such injuries, obtained from any sources on the part of such employer . . . or agent" shall be equivalent to written notice.


12Although this consideration greatly influenced the court, yet it is a doubtful one because it is in contravention of the well established rule of agency that notice to or knowledge of an agent, while acting within the scope of his authority, is notice to or knowledge of the principal, whether it reaches him in fact or not. See 2 MECHEM, AGENCY, (1914) §§ 1803, 1805, 1807, 1813. But see §§ 1639, 1652, 1653, as to the conflict of authority on the question whether a foreman or superintendent is an agent of the employer in dealing with those lower in employment or merely a fellow servant.

13 Principal case.

14Ala. Civ. Code (1923), Sec. 7658.

15Grimes v. Stith Coal Co., 213 Ala. 399, 104 So. 756 (1925).

16Work. Comp. Act, Sec. 20.

17Smith v. Industrial Accident Comm., 174 Cal. 199, 162 Pac. 636 (1917). 18Cal. Gen. Laws (Henning 1920) Act 2781, Sec. 15.

18a Italics are the writer's.

By statute1 and judicial decision, 20 in Georgia, knowledge of an accident derived verbally from the employee is sufficient. Indiana statute21 requires written notice unless the employer or his representatives shall have actual knowledge of the injury or death at the time thereof, or shall acquire such knowledge afterwards, and oral notice was held22 adequate to convey the information upon which the requisite knowledge was found. In Illinois, written notice has been held unnecessary where a fellow workman gave the foreman oral notice, 23 or the injured man himself, 24 or his son, 25 told the employer or agent of the injury, or the employee asked the foreman to take a piece of brass out of his eye,26 or the employer visited him,27 or was present.28 In Oklahoma and Wisconsin, the giving of oral notice places upon the employer the burden of showing that he was misled and prejudiced by lack of written notice.29 Kentucky, Maine, Massachusetts, Michigan, Minnesota, and New Jersey have substantially the same provision30 regarding written notice and knowledge as an excuse for failure to give it. In these states knowledge acquired not only by personal observation, but also by oral report and information has been held to be within the statute. Oral notice is not

199 Ga. Ann. Code (Park Supp. 1926) Sec. 3154(W). 20Van Treeck v. Travellers' Insurance Co., 157 Ga. 204, 121 S. E. 215 (1924). 21Ind. Ann. Stat. (Burns 1926) Sec. 9467.

22Hornbrook, Price Co. v. Stewart, 66 Ind. App. 400, 118 N. E. 315 (1918); Vandalia Coal Co. v. Holtz, 68 Ind. App. 670, 120 N. E. 386 (1918); Garton v. Kleinknight, 74 Ind. App. 267, 128 N. E. 770 (1920); Terre Haute Malleable & Mfg. Co. v. Wehrle, 76 Ind. App. 656, 132 N. E. 698 (1921).

23 Wabash Ry. v. Industrial Comm., 286 Ill. 194, 121 N. E. 569 (1918).

"Hammond Company v. Industrial Comm., 288 Ill.262, 123 N. E. 384 (1919); the same ruling in Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S. W. 395 (1923); Crane Enamelware Co. v. Dotson, 152 Tenn. 401, 277 S. W. 902 (1925).

25Valier Coal Co. v. Industrial Comm., 320 Ill. 69, 150 N. E. 651 (1926). 26American Glyco Metal Co. v. Industrial Comm., 306 Ill. 421, 138 Ń. E. 176 (1923).

27Omaha Boarding and Supply Co. v. Industrial Comm., 306 Ill. 384, 138 N. E. 106 (1923).

28Stresenreuter v. Industrial Comm., 322 Ill. 187, 152 N. E. 547 (1926). 29Oklahoma Gas & Electric Co. v. Thomas, 115 Okla. 67, 241 Pac. 820 (1925); Pellett v. Industrial Comm., 162 Wis. 596, 156 N. W. 956 (1916); Breslauer Co. v. Industrial Comm., 167 Wis. 202, 167 N. W. 256 (1918).

30Ky. Stat. (Carroll 1922) §§ 4914-4917; Me. Laws (1919) Ch. 238, §§ 17–20; 2 Mass. Gen. Laws (1921) Ch. 152, 88 41-44; Mich. Comp. Laws (1915) §§ 54455448; Minn. Gen. Stat. (1913) Sec. 8213; 2 N. J. Comp. Stat. (Cum. Supp. 1924) 3879.

31Bates & Rogers Construction Co. v. Allen, 183 Ky. 815, 210 S. W. 467 (1919), "Actual notice to take the place of a written notice should be sufficient to convey to the employer the same knowledge of the injury that would be required if a written notice was given." Ames Body Corp. v. Vollman, 199 Ky. 358, 251 S. W. 170 (1923); Kingston, Pocahontas Coal Co. v. Maynard, 209 Ky. 431, 273 S. W. 34 (1925); Simmon's Case, 117 Me. 175, 103 Atl. 68 (1918); Lachance's Case, 121 Me. 506, at 509, 118 Atl. 370 (1922); In re Bloom, 222 Mass. 434, III N. E. 45 (1916); In re McLean, 223 Mass. 342, 111 N. E. 783 (1916); In re Murphy, 226 Mass. 60, 115 N. E. 40 (1917); Walkden's Case, 237 Mass. 115, 129 N. E. 396 (1921); Butler's Case, 243 Mass. 166, 137 N. E. 175 (1922); Bergeron's Case, 243 Mass. 366, 137 N. E. 739 (1922); Purdy v. City of Saulte St. Marie, 188 Mich. 573, 155 N. W. 597 (1915), where a street sweeper told the superintendent of his injury on the following day; Shafer v. Parke, Davis & Co., 192 Mich. 577,

necessarily knowledge, but it may "... attain to the office of suggesting a way to the acquirement of such intellectual acquaintance with fact as would be the equivalent of a notice regularly given."32


In Massachusetts, in In re Murphy,33 the court said, "... information given orally under some circumstances may be sufficient to establish knowledge and permit recovery, (although)33a an oral notice itself does not fulfill the requirements of the statute." In Walhden's Case,34 the court held, "The word 'knowledge' is used in the statute in its ordinary sense as meaning actual knowledge, but not absolute certainty. While notice of what has happened is not actual knowledge that the employee has been injured, it is such information as men usually act upon in ordinary human affairs. ... The employer or his agent upon receiving intelligible information which he should have given heed to, cannot say he is without means of knowledge of the accident because it did not happen in his presence." In Allen v. City of Melville,35 the New Jersey court in construing actual knowledge declared, "He (agent of the municipal corporation) 35a did not (have knowledge) 35b in the sense that he saw the injury and knew of it first hand so that he could properly testify as a witness. We think in spite of the use of the word actual to qualify the knowledge required, that first hand personal knowledge is not what is meant." The statute in New York does not use the word actual to qualify knowledge, but the dissenting opinion in the instant case seems to supply it. All Workman's Compensation Acts were passed for the humane purpose of dispensing justice. They should be construed liberally, and therefore the requirement of written notice should not be an indispensible formality necessary to the claimant's recovery.36 The dissent in the instant case appears to be a partial backward step; it would place a technical obstacle in the path of a deserving claimant. In modern industrial life, all accidents and injuries cannot be personally witnessed by the employer or his or its agents. Certainly if the employer or the agent is completely informed of the injury, it should be sufficient regardless of the form and manner in which he receives it. Alfred Appel.

159 N. W. 304 (1916); Burke v. Michigan Stamping Co., 223 Mich. 495, 194 N. W. 408 (1923); Wheat v. Clark and Hulse, 227 Mich. 556, 199 N. W. 207 (1924); Kraker v. Nett, 148 Minn. 139, 180 N. W. 1014 (1921); Allen v. Melville, 87 N. J. L. 356, 95 Atl. 130 (1915).

32 Lachance's Case, supra note 31.

City of

33 Supra note 31; cf. In re Brown, 228 Mass. 31, 116 N. E. 897 (1917), where the employer's report after the oral notice made out his knowledge.

33a Interposed by the writer.

34 Supra note 31.

35 Ibid.

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36 Simmon's Case, Shafer v. Parke, Davis & Co., Kraker v. Nett, supra note 31; Bloomfield v. November, supra note 10; Hynes v. The Pullman Co., 223 N. Y. 342, 119 N. E. 706 (1918); Dorbs v. Stearns, supra note 11; Lawson v. Wallace & Keeney, 202 App. Div. 435, 195 N. Y. Supp. 673 (3rd Dept. 1922); City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188 (1913), contains a good account of the purpose of the Acts and the liberality that should control their administration.

Torts: A suggested substitute for the test of remoteness: Indemnity: Subrogation.


Can an employer, who is under a contractual duty to maintain and care for seamen in his employ, recover hospital expenses paid by him, from the one who caused the injury? The court in The Federal No. 2, 14 Fed. (2nd) 530, (1926), answers this question in the negative. The libellant in that case attempted to recover on the theory that it was obliged to provide maintenance and care for the seamen for injuries sustained while in the service of the ship, and as those injuries were caused by the negligence of the Federal, she was liable to the libellant therefor. The court ruled that the damages sustained by the libellant are remote, the proximate cause of these damages is the contract, and the claimant cannot be held liable on producing the contingency which makes the libellant liable on his contract, citing Anthony v. Slaid.1 The libellant, to sustain its contention, attempted to show: (1) that the claimant's liability here is analogous to the liability of a tortfeasor to the parent of the child he has injured. The court distinguishes these cases on the ground that the obligation of parents to children is not contractual,2 while the right to maintenance and care of seamen is contractual; (2) that the claimant's liability here is analogous to the liability of a tort-feasor to the accident insurance company, whose insured he has injured. The court ruled that even if it is analogous, accident insurance is not a contract of indemnity only, and that the insured may recover in such case from both the tort-feasor and the insurance company. The court concluded that the facts therefore are not sufficient to constitute a cause of action and dismissed the complaint.

The question that the instant case attempts to answer is one of growing importance. Take, for example, just one phase of this situation: the modern innovation of Workmen's Compensation Acts, where a recovery by an employee for his injury, from his employer, is practically automatic. It is highly improbable that such employee will substitute for this immediate and simple relief, an action against the tort-feasor, and assume the burden of overcoming all of the defenses that the tort-feasor may have. The result would be, if the reasoning of the court in the instant case is to be given any consideration at all, that the tort-feasor in all such case can commit wrongs with impunity and have the satisfaction of seeing his obligation paid for by the innocent employer.

152 Mass. 290 (1846). The plaintiff in that case was put to increased expense because of the defendant's assault of a pauper whom the plaintiff had contracted with the town to take care of. Court then held that the plaintiff sustained the loss by means of contract. The damages were therefore held to be remote and indirect.

2Citing Cuming v. Brooklyn City Ry. Co., 109 N. Y. 95, 16 N. E. 65 (1888). Citing The Bouker No. 2, 241 Fed. 831 (C. C. A. 2nd 1917); The Hanna Nielson, 273 Fed. 171 (C. C. A. 2nd 1921).

"Citing, Suttles v. Ry. Mail Ass'n, 156 App. Div. 435, 141 N. Y. Supp. 1024 (4th Dept. 1913).

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