Argued before John M. Kellogg, P. J.. and Lyon. Woodward, Cochrane, and Henry T. Kellogg, JJ. Alfred W. Weldon. of New York City, for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, for State Industrial Commission. HENRY T. KELLOGG, J. This award was made on October 10. 1917. and notice therof was served on October 26,1917. No formal notice of appeal was served until January 4. 1918. The Commission declined to make any statement of its conclusions of fact and rulings of law, as required to be done within 30 days after taking an appeal, for the reason that the appeal itself was not taken in time. As the formal notice of appeal was not served within 30 days from the service of the notice of the award, the notice of appeal was ineffectual. Section 23, Compensation Law (Consol. Laws, c. 67). However, within such 30 days the insurance carrier did send to the Commission a letter, reading as follows: "November 21. 1917. The State Industrial Commission, 230 Fifth Avenue, New York. 11587-P. Prendergast v. Berrian Bros. 28681. Gentlemen: For the purpose of protecting our interest we hereby file notice of our intention to appeal from the award made in the aboveentitled case under date of October 10th. Notice of this award is dated October 26th and was received in this office three days later. On the 31st of October a rehearing was allowed for the purpose of introducing further testimony, and at the conclusion of the hearing Commissioner Archer stated that the evidence would be carefully reviewed as if given in the first place and decision reserved. It is my impression that the award made on October 10th was thereby rendered null and void, but in order to be on the safe side I am filing this notice of appeal. Yours very truly, General Accident. Fire & Life Assur. Corp.. by H. A. Dicker. HAD/E." It will be observed that in the first part of this letter the writer merely gives notice of an intention to appeal. However, in the concluding sentence of the letter these words will be found: "In order to be on the safe side I am filing this notice of appeal." It has been the practice of the Commission and of the courts to administer the provisions of the Compensation Law in a liberal spirit, in disregard of formal or technical rules of procedure. No good reason suggests itself why the treatment of claimants should be liberal, and that of the employers and carriers should be harsh. The letter in question does state that the writer thereof is thereby filing an appeal. should therefore be regarded as a notice of appeal. It Accordingly the Commission should make a statement of its conclusions of fact and rulings of law. The case is remanded to the Commission for such purpose. All concur. SUPREME COURT OF NEW YORK. DEGAGLIO BRADLEY CONTRACTING CO.* 1. MASTER AND SERVANT—WORKMEN'S COMPENSATION— CLAIM FOR COMPENSATION-DELAY IN FILING. Injured employee's delay in filing claim for compensation until nearly 2 years 6 months after injury bars his claim. unless employer is estopped from asserting such delay as a bar to an award. (For other cases. see Master and Servant. Dec. Dig. § 398.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— DELAY IN FILING CLAIM—ESTOPPEL. A promise of employer's superintendent to give injured employee an easy job as soon as he was able to work does not estop employer from asserting employee's delay in filing claim as a bar to recovery of an awa.d; there being no fact. falsely asserted, that induced employee not to file claim. (For other cases. see Master and Servant. Dec. Dig. § 398.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— DELAY IN FILING CLAIM—ESTOPPEL. Payments by employer to injured employee, stated to be made under Workmen's Compensation Law, and continued for about a year, do not estop employer from asserting employee's delay in filing claim as bar to recovery of compensation, where first payment was made after time in which to file claim had passed. (For other cases. see Master and Servant. Dec. Dig. § 398.) Appeal from State Industrial Commission. Proceeding before the State Industrial Commission on the claim of John Degaglio for compensation under the Workmen's Compensation Law (Consol. Laws, c. 67), opposed by the Bradley Contracting Company, employer and self-insurer. From an order of the State Industrial Commission, awarding claimant compensation up to January 18, 1918, and continuing the case, and directing that the employer pay the amount of the award into the office and the cashier of the Commission, the employer appeals. Award reversed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Fred'k L. C. Keating, of New York City, for employer Merton L. Lewis, Atty. Gen., and Robert E. Bonynge, of New York City, for State Industrial Commission. Francis X. Mancuso, of New York City, for claimant. HENRY T. KELLOGG, J. [1-3] Claimant was injured on August 12, 1914. He did not file a claim for compensation until March 5,1917, or * Decision rendered. July 1. 1918. 171 N. Y. Supp. 679. nearly 2 years and 6 months after the injury was received. Unless he has established an estoppel, therefore, his claim is barred. He says that he told the head superintendent of his injury at the time, and that he replied, "We will take care of you." He also says that he asked the superintendent for payment of compensation, and that he answered, "Soon as you can work, we'll give you an easy job." Here is no estoppel. There is no fact, falsely asserted, relying upon which the claimant was induced not to file a claim. It is not at all like the case of Twonko v. Rome Brass & Copper Co., App. Div. 170 N. Y. Supp. 682, in which the claimant was falsely told that a paper signed by him, would entitle him to an award. Claimant continued to work until October 2, 1914. He then went to a hospital for an operation. After this he was paid by his employer for about a year. Those payments, however, even though stated to be payments under the Compensation Act (Consol. Laws, c. 67), do not help the claimant, for the time to file a claim had passed before they began to be made. They could not have induced claimant not to file a claim. The award should be reversed. Award reversed, and claim dismissed. All concur. SUPREME COURT OF OHIO. INDUSTRIAL COMMISSION OF OHIO V. ROTH ET AL. (No. 15526.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "OCCUPATIONAL DISEASE." A disease contracted in the natural and ordinary course of employment, by a person engaged in a particular calling or occupation, which disease from common experience is known to be a usual and customary incident to such calling or occupation, is an "occupational disease," and not within the contemplation of the Workmen's Compensation Law (Act, June 15, 1911 [102 Ohio Laws, p. 524]). (For other cases, see Master and Servant, Dec. Dig. § 376[2].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION"OCCUPATIONAL DISEASE." The accidental and unforeseen inhaling by an employee, in the course of his employment, of a specific, volatile poison or gas, resulting in injury or death, is not an "occupational disease." (For other cases, see Master and Servant, Dec. Dig. § 376[2].) Error to Court of Appeals, Jefferson County. Proceedings by Edwin S. Roth and others for compensation under the Workmen's Compensation Act, opposed by McFeeley Brothers, employer, and the Industrial Commission of Ohio. Compensation was denied, and on appeal to the court of common pleas a general demurrer to the petition was sustained, and the petition dismissed. The judgment *Decision rendered, April 2, 1918. 120 N. E. Rep. 172. Syllabus by the Court. was reversed on error by the court of appeals, and the Industrial Commission brings error. Affirmed. In the fall of 1915, Edwin S. Roth, a boy of about 18 years of age, was employed by McFeeley Bros. as a common laborer. McFeeley Bros. had complied with the provisions of the Workmen's Compensation Law, and had paid premiums into the insurance fund of the state of Ohio, as required by that Law. On the 8th day of November, 1915, Roth, in 'the course of his employment, was ordered and directed to do some painting on a building in the process of construction. Roth, though not a painter, undertook to obey the orders given him; but the weather was so cold that the paint would not flow from the brush. He was then directed by his employers, through their foreman, to take the paint to a small building and heat it; which he did. This small building had no ventilation except the doors and windows, which were closed. The paint, when heated, gave off poisonous fumes and vapors, which were inhaled by Roth while heating it and also while at work with a bucket of hot paint directly under him. This process of heating was required to be done from time to time throughout that day and the next. On the evening of the second day, Roth became ill from the poisonous fumes and gasses which he had inhaled, and his illness continued to increase from day to day until it resulted in his death on the 26th day of the same month. An application was made to the Industrial Commission of Ohio by the defendants in error, who were all partially dependent upon the deceased for support, for compensation on account of the death of Edwin S. Roth. The commission refused to make any award of compensation, and denied defendants in error any right of compensation whatever, for the reason that in the opinion of the commission death resulted from an occupational disease and not from injuries received in the course of his employment. An appeal was taken from this order of the Industrial Commission of Ohio to the court of common pleas of Jefferson county. A petition was filed by the defendants in error averring the above facts. To this petition the Industrial Commission of Ohio filed a general demurrer which was sustained by the common pleas court, and, defendants in error not desiring to plead further, their petition was dismissed and judgment rendered against them for costs. Upon a proceeding in error, the court of appeals of Jefferson county reversed the judgment of the common pleas court, and this proceeding in error is now prosecuted in this court to reverse the judgment of the court of appeals. Joseph McGhee, Atty. Gen., William J. Ford, of Columbus, H. Stanley McCall, of Portsmouth, and Roy R. Carpenter, Pros. Atty., of Steubenville, for plaintiff in error. C. L. Williams, of Steubenville, for defendants in error. DONAHUE, J. It is contended on the part of the plaintiff in error that it conclusively appears from the facts stated in the petition that Edwin S. Roth died from an occupational disease, and that injury or death resulting from such diseases contracted in the course of employment is not within the provisions of the Workmen's Compensation Act and cannot be made the basis of a claim for compensation from the insurance fund provided by that act. If this is true, it is the end of the case, and the judgment of the court of appeals must be reversed and that of the common pleas affirmed. Industrial Commission of Ohio et al. v. Brown, 92 Ohio St. 309, 110 N. E. 744, L. R. A. 1916B, 1277. In the brief of counsel for plaintiff it is said that: "The question as to whether or not this is an occupational disease is a medical question rather than a question of law." If that statement is correct, then it was error for the trial court to sustain the demurrer, and it should have submitted the question to a jury under proper instructions, upon such expert medical evidence as might have been offered by the parties to the suit. There is, however, no dispute as to the facts in this case. Nevertheless, it does not always follow that where the facts are not in dispute the jury has no function to perform. Sometimes the ultimate question at issue is a proper one to be submitted to the jury, even where there is no dispute as to the primary facts and combination of circumstances from which the conclusion is to be deduced; as, for instance, in a negligence case, where the admitted facts do not constitute negligence per se, it is the province of a jury to determine whether they do or do not constitute negligence under the peculiar circumstances of each particular case. On the other hand, where the facts are admitted or conclusively established, and the proper judgment to be entered involves only the construction of the law applicable to such facts, the question is for the court, and not for the jury. Cornell v. Morrison, 87 Ohio St. 215, 100 N. E. 817. We are of the opinion that this case comes within the latter class, although it is very close to the dividing line, and we can readily see how a very slight variance in the facts, in a similar case, might present a jury question. In this case it is admitted that the deceased was a common laborer, and that the disease of lead poisoning is not incident to his regular occupation, but, on the contrary, is incident to the work in which he was employed for the two days preceding his illness. [1] “Occupation" has been defined by the courts of this and other states to be "that particular business, profession, trade, or calling, which engages the time and efforts of an individual." In other words, the employment in which one regularly engages, or the vocation of one's life. A disease contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incident to a particular employment, is an occupational disease, and not within the contemplation of the Workmen's Compensation Law. It is within the common knowledge of men that lead poisoning is a disease incident to the occupation of a painter, and if this young man, although employed as a common laborer, undertook in the course of his employment to do the work of a painter, and by reason thereof, in the natural and due course of events, contracted this disease as an incident thereto, it is the end of the controversy. But it is also common knowledge that in the occupation of a painter the exposure is so slight that this disease is slow and insidious in its development, and chronic in its character. In fact, the history of the development of this disease in this occupation shows that it is a matter of years instead of days, and that many escape altogether. There are many other occupations, perhaps as many as 85 in the aggregate, to which this disease is also incident, and in some of them the exposure is so great that the disease is of far more rapid development. Lead smelting and the making and handling of lead carbonates are far the most hazardous of these employments, yet a case of lead poisoning developed in five weeks by a man employed in a white lead factory, who was furnished no respirator and was not advised that the white dust on his hands and mustache was poison, is reported by medical authorities as an extreme case of the rapid development of this disease. Lead poisoning, of course, may be acute if the exposure is so extraordinary and overwhelming as to produce immediate results. Time, after all, is but a relative circumstance, and the amount of time requisite for the development of this disease is always in the inverse ratio to the extent and character of the exposure. In the construction of the law it is the duty of a court to give to words their usual and ordinary meaning, such as they import to mankind in general, and not in forced or unusual definition, which may in its last analysis be technically correct, but wholly at variance with the common |