O'Brien v. Wise Upson Co., Inc.

143 A. 155, 108 Conn. 309, 1928 Conn. LEXIS 202

• Court: Supreme Court of Connecticut
• Decided: September 28, 1928
• Status: Published

Opinions

Banks, J.

The plaintiff, who is a carpenter by trade, in getting down from a staging upon which he had been standing, got his foot entangled in a temporary supply pipe which ran to a radiator located near the staging, and wrenched his body. He continued at his work and worked for one week without incapacity. He then consulted a doctor, who found a right indirect in guinal hernia which, in his opinion, resulted from the wrenching received by the plaintiff as he was getting down from the staging. The commissioner found that the hernia resulted from an injury arising in the course of plaintiff’s employment, but that he was not immediately incapacitated for work, and dismissed his claim for compensation. Section 5352 of the General Statutes, as amended by Chapter 307, §4, of the Public Acts of 1927, provides: “In order to be entitled to compensation for a hernia, the employee shall prove that the hernia resulted from an accidental injury, that inability to work immediately followed such accident, that there was not a pre-existing hernia at or prior to the accident for which compensation is claimed and that, within two weeks thereafter, the facts of such accident were communicated to the employer.” The commissioner has not directly found that the plaintiff’s hernia arose out of his employment, nor that the facts of the accident were reported to the employer within two weeks, though the former necessarily follows from the other facts found, and the latter may be covered by the finding that “the claimant has satisfied all the requirements of the statute except that he was not immediately incapacitated for work.” The only question raised by the appeal from the finding of the commissioner and presented upon this reservation is whether the commissioner erred in holding that, because the plaintiff continued to work for a full week after the accident, his inability to work did not immediately follow the accident and he was not therefore entitled to compensation under the section of the statute above quoted.

Our answer to the question presented involves a construction of the statute and more particularly a determination of the precise meaning to be accorded to the word “immediately” as there used. The word “imme diately” may be used as an adverb of time, place or causation, and from its etymology signifies that there is nothing intervening either of time, space or cause, as the case may be. It is more frequently used as an adverb of time and would ordinarily be so construed unless the context indicates otherwise. In its strict significance as so used it excludes the lapse of any interval of time. As judicially construed, however, it is a word of relative significance, much in subjection to its grammatical connection, and used with more or less latitude according to the subject to which it is applied. McLure v. Colclough, 17 Ala. 89, 100; 4 Words & Phrases (1st Series) 3407. Where used in connection with human conduct, as in the case of a requirement that a certain thing shall be done immediately, it is generally held to require that the act shall be performed, not instantly, but without unreasonable delay having regard to the nature of the thing to be done. This is well illustrated in the construction given to the provision in an insurance policy that notice of the loss must be given immediately. The notice is sufficient if given within a reasonable time under the circumstances of the case. Lockwood v. Middlesex Mutual Assur. Co., 47 Conn. 553, 568. Where, however, an event must follow another immediately and no human action is involved, no question of reasonable time in which to act can arise, since no action is to be taken. It is simply a question of sequence of events.

Such a situation is presented in the construction of a clause commonly appearing in policies of accident insurance which limits the liability of the company to those injuries which “independently of all other causes immediately, wholly and continuously disable” the insured. The word “immediately” in this clause has generally been construed as an adverb of time rather than causation. A majority of the decisions construing such a clause have held that the disability need not follow instantly—that is, without any interval of time—but have disallowed a recovery under the policy unless the accident was followed by total disability without any substantial interval. “It is generally agreed that ‘immediately’ as so used does not mean instantaneously or without any interval of time; and is not, on the other hand, equivalent to the phrase ‘within a reasonable time,’ but requires that the disability shall result presently and without any substantial interval.” 1 Corpus Juris, 468. “The word ‘immediately’ does not mean instantly, in the sense that a man shall be totally disabled from the very second of the accident which has caused the injury. A man might be unable to attend to his business from the very moment of the injury, or in another case he might not be disabled for a few minutes or a few hours after the injury. ‘Immediately’ means presently or without any substantial interval of time elapsing.” Fuller on Accident & Employers’ Liability Insurance, p. 70. In Kansas it has been held that in such cases disability is immediate when it follows directly from an accidental hurt within such time as the processes of nature consume in bringing the insured to a state of total incapacity. Order of United Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, 82 id. 1099. In this case the injury arose from the swallowing of a pin and total disability followed after an interval of twelve days. This case was followed in Erickson v. Order of United Commercial Travelers, 103 Kan. 831, 176 Pac. 989, and Rabin v. Central Business Men’s Asso., 116 Kan. 280, 226 Pac. 764.

In the Erickson case, the accident happened in September and the disability did not result until the following February, and the court said: “It may be inferred from the testimony that the disability was reached within the time that the processes of nature take to effect such a development.” In some cases the question of whether the disability was both total and immediate has been left to the jury as one of fact. Except for the Kansas decisions the courts have pretty uniformly held that where the disability did not result for a matter of days after the accident there could be no recovery under such a clause in an accident policy. Williams v. Preferred Mutual Acc. Asso., 91 Ga. 698, 17 S. E. 982; Vess v. United Benevolent Soc., 120 Ga. 411, 47 S. E. 942; Merrill v. Travelers Ins. Co., 91 Wis. 329, 64 N. W. 1039; Pepper v. Order of United Commercial Travelers, 113 Ky. 918, 69 S. W. 956; Masonic Protective Asso. v. Farrar, 73 Ind. App. 19, 126 N. E. 435; Herwig v. Business Men’s Acc. Asso. (Mo. App.) 234 S. W. 853; Letherer v. United States Health & Acc. Ins. Co., 145 Mich. 310, 108 N. W. 491; Preferred Masonic Mutual Acc. Asso. v. Jones, 60 Ill. App. 106; Genoa v. Continental Casualty Co., 167 Ill. App. 413; Hefner v. Fidelity & Casualty Co., 110 Tex. 596, 222 S. W. 966; Mullins v. Masonic Protective Asso., 181 Mo. App. 394, 168 S. W. 843; Leventhal v. Fidelity & Casualty Co., 9 Cal. App. 275, 98 Pac. 1075. See also, for a collection and analysis of the cases, notes in 24 A.L.R. 226; 37 A.L.R. 151; 41 A.L.R. 1376; Ann. Cas. 1914D, 380. When a statute gave an action for death by wrongful act only when the person injured died immediately, it was held that while “immediately” was more comprehensive and elastic than instantaneously, there could be no recovery where the death occurred about an hour after the injury. Sawyer v. Perry, 88 Me. 42, 33 Atl. 660. But the same court in a later case allowed a recovery where total unconsciousness followed immediately upon the accident and continued until death, though the latter did not occur for seventy-five hours. Perkins v. Oxford Paper Co., 104 Me. 109, 71 Atl. 476.

We have given somewhat extended consideration to the decisions construing this clause in accident policies, since they present a situation closely analogous to the one before us. In those cases, notwithstanding the' familiar rule that provisions of an insurance policy are to be construed most strongly against the insurer, which has inserted them in the policy for its own benefit, we have found the courts denying recovery unless the disability resulted without any substantial interval of time. Here, in considering a statute which is not to be construed in favor of either party, we are asked what the legislature meant when it said that in such cases the employee, in order to recover, must prove that inability to work immediately followed the accident. The language used is so singularly clear and unambiguous that it might well be said to fall within the rule that “it is not allowable to interpret what has no need of interpretation.” Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 438, 28 Atl. 540; McKay v. Fair Haven & W. R. Co., 75 Conn. 608, 610, 54 Atl. 923. The phrase “inability to work” is too clear to be misunderstood, and when it is said that the inability to work must immediately follow the accident, it is obvious that reference is had to an accident occurring in connection with the work upon which the employee is engaged, that the word “immediately” is used as an adverb of time, and that the meaning of the whole phrase is that the employee is unable to continue the work upon which he was engaged at the time of the accident—that the injury was such as to compel him to quit work at once. Surely that would be the ordinary and commonly accepted meaning of these words and there appears no reason to doubt that the General Assembly used them in that sense. The context not only does not indicate otherwise, but conclusively shows that “immediately” is here used as an adverb of time rather than causation. As the latter, it would be unnecessary repetition, since the causal relation between the accident and the hernia is made necessary by the next preceding phrase of the amendment requiring proof that “the hernia resulted from an accidental injury.” As an adverb of time, it could not, even if the context otherwise permitted, be held to be the equivalent of “within a reasonable time,” since it does not refer to anything done voluntarily by human agency where delay may be excused by reason of the circumstances of the case.

Furthermore, this construction, of the statute effectuates the apparent intent and purpose of the legislature in its enactment. The ordinary type of indirect inguinal hernia is held by many surgeons to be the result of a congenital or prenatal weakness. Eventually some strain or effort, which may not itself be severe, causes the protrusion of the intestine through the defective structure, resulting in what is known as “the hernia of effort.” Since the employer of labor takes his workman as he finds him, and compensation is not made to depend upon his freedom from liability to injury through a constitutional weakness, this form of hernia is compensable. Hartz v. Hartford Faience Co., 90 Conn. 539, 543, 97 Atl. 1020. Owing to the nature of hernia, and its onset, it was difficult for the employer to defend against claims of this character based upon a history of lifting or straining, perhaps months before, of which he had no notice but which would be assigned as the producing cause of the hernia. To meet this situation and to prevent the allowance of claims which were felt to be unjustifiable, special provisions with regard to recovery in the case of hernia have been adopted in the compensation laws of some twenty or more States. It is clearly the purpose of our own Act, which follows rather closely the form of those adopted in many other States, to restrict compensation for hernia to those cases where the hernia follows immediately and directly from an accident occurring in the course of the employment with timely notice thereof to the employer. It does not confine compensation to cases of true traumatic hernia, which are so rare as to be negligible, but does require proof that the usual form of hernia—the hernia of effort—was caused by a strain or other accident which produced an immediate inability to work and that the facts of such accident were communicated to the employer within two weeks thereafter.

It has been suggested that it is sufficient if the disability result within two weeks, the period within which notice must be given to the employer of the. accident causing the hernia. Not only would that be quite foreign to any meaning which has ever been given to the word “immediately,” which is never used to designate an exact period of time, but if that had been the intention of the legislature it would almost certainly have definitely fixed the two-weeks period here as it has done in the case of notice to the employer. Unless the word means, as has so generally been held in the accident insurance cases, “without a substantial interval of time,” it can only be held to mean that the disability must follow within such time as the processes of nature consume in bringing about disability as a result of the injury. Such a construction would result in fixing the date of the disability in terms of causation rather than of time. It would mean that the disability—-no matter how long after the accident it resulted—immediately followed it, if only it was within such period of time that the accident could have been the cause of the disability, thus reaching the result of one of the Kansas cases, Erickson v. Order of United Commercial Travelers, supra, that a disability was immediate which did not result until five months after the accident. This is the very result that it was the purpose of the amendment to prevent. Prior to the amendment, hernia was compensable only if it was caused by an accident arising in the course of and out of the employment. This clause of the amendment requires, in addition to proof of the cause of the hernia, proof that inability to work resulted immediately. If that means no more than proof that disability resulted when it would result, according to the processes of nature, if the hernia was the result of the accident, it leads to a result which not only may be quite inconsistent .with the connotation of the word “immediate” when used in such a connection, but which quite obviously fails to accomplish the apparent purpose and intent of the legislature in the adoption of this amendment to the Compensation Act. A common provision in the compensation laws of other States is one requiring proof that the hernia immediately followed the injury. A diligent search of the decisions of those States fails to disclose any case in which the claim has been made that “immediately” was there used as an adverb of causation or, if an adverb of time, in the sense of “within a reasonable time.” It is said that a hernia resulting from a strain or wrench rarely produces immediate inability to work and that the statute thus construed will exclude from compensation the majority of hernke of this class. If this were a matter of which we could take judicial notice, we would find surgical authority holding that a hernia which was actually caused by a strain is ordinarily accompanied by pain and immediate inability to proceed with the work that was being done. Be that as it may, we would not be at liberty to disregard the plain meaning of the language of the statute because it leads to a result which might seem undesirable. Questions as to what cases of hernia, or whether hernia in any case, shall be compensable, are questions for the legislature. It has said that hernia shall not be compensable unless it results from an accidental injury and that inability to work immediately follows the accident. It is not within our province to wrest this language from its plain meaning in order to provide a more liberal rule of compensation in such cases than that which the legislature in its wisdom has seen fit to adopt.

An employee who continues his work without incapacity for a week after an accidental injury is not entitled to compensation for a hernia claimed to have been caused by such injury, since inability to work did not immediately follow the accident.

The Superior Court is advised to render its judgment dismissing the appeal and confirming the finding of the commissioner.

In this opinion Maltbie and Hinman, Js., concurred.