Under a statute providing that "the notice may be served by post or letter addressed to the person on whom it is to be served, at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when the letter containing the same would be de livered in the ordinary course of the post," it is immaterial that the notice in fact never reaches the person to whom it is addressed ; Hurley v. Olcott, 198 N. Y. 132, 91 N. E. 270, 28 L. It. A. (N. S.) 238. It has been held that notice given or claim made by or on be half of one dependent does not inure to the benefit of the other dependents ; Kyle v. Mc Ginty, 48 Sc. L. Rep. 474.
An injured workman will be excused for delaying to give notice, where the injury at first appears to be of little or no consequence, but later proves to be serious. An honest mistake of this kind is well within the stat utory exception ; Tibbs v. Watts & Co., 2 Butterworth's W. C. Cas. 164. As soon as it becomes apparent, however, that the injury is likely to prove serious, the workman should hasten to give notice. Ignorance on the part of the workman of the existence of a compensation statute in the state in which he works, or of his rights thereunder, or of the requirements of such statute relative to giving notice of injury, is not such a mis take that will excuse the giving of notice to the employer of an injury within the time required by the statute; Boles v. Pascall, [1911] 1 K. B. 982.
Most of the statutes excuse the failure to give notice if there was no intention to mis lead the employer and he was not in fact mis led thereby. The wording of the statutes varies greatly, but the purpose seems to be to excuse the want of notice when the employer is not prejudiced thereby. Ordinarily the onus of proving that the failure to give no tice of an accident has not prejudiced the em ployer is on the one making claim for com pensation; Roles v. Pascall, [1911] 1 K. B. 982. By the terms of some of the statutes in this country the burden is put upon the employer to show that he has been prejudiced thereby, while in others the burden of proof is not placed on either party, but naturally it is on the applicant for compensation, be cause unless it affirmatively appears during the proceedings that the employer was not so prejudiced no recovery can be had. The no tice of injury which compensation statutes re quire to be given employers should be liberal ly construed ; Jones v. Francis, 70 Wash. 676,
127 Pac. 307.
Accident. Most of the states have followed the English act in many respects, including the requirement that, to entitle an injured workman to compensation, his injury must have been due to an accident. The House of Lords has declared that the word is used in its popular and ordinary sense, and means "an unlooked-for mishap, or an untoward event, which is not expected or designed" ; Fenton v. Thorley & Co., [1903] A. C. 443. This definition was adopted in Bryant v. Fis sell, 84 N. J. Law 72, 86 Atl. 458. 'N con stitute an accident, a happening must be ca pable of being described as having occurred on a particular date; it must be an event, as distinguished from a gradual growth, the commencement of which is uncertain; Mar shall v. East Holywell Coal Co., 93 L. T. Rep. 360. Thus, the contraction of lead-poisoning from the continual use of red and white lead, by absorbing it through the pores, or inhal ing the poison into the lungs, or by eating food to which small particles have adhered, is not an accident, as the development of the disease is a gradual process, generally taking considerable time; Steel v. Cammell, etc., Co., [1905] 2 K. B. 232. So an abscess in the knee, gradually developed by kneeling while at work, is not due to an accident ; Gorley v Backworth Collieries, 93 L. T. Rep. 360. The event, to constitute an accident, must be one that is unforeseen by the person injured by its occurrence, and it has been declared that an occurrence is unexpected if it is not ex pected by the man who suffers by it, even though every man of common sense who knew the circumstances would think it cer tain to happen; Clover, etc., Co. v. Hughes, [1910] A. C. 242. An event may constitute an accident, although the person causing it did so intentionally. Thus, an engineer was while driving the engine of an ex press train by a stone thrown by a boy from a bridge under which the train was passing at the time. It was held that the injury was due to an accident, that the circumstance of the throwing of the atone being a wilful act on the part of the boy was immaterial ; [1905] 2 K. B. 154. The fact that the phys ical condition of the injured person is a contributory cause of the event does not pre vent its being an accident ; [1908] A. C. 437.