Bodah v. Coeur D'Alene Mill Co.

*682 WM. E. LEE, C. J. For some years prior to the accident which gave rise to this proceeding, Henry W. Bodah had been an employee of the Coeur d’Alene Mill Company. On the twenty-fourth day of June, 1925, according to the findings of fact made by Lawrence E. Worstell, a member of the Industrial Accident Board, Mr. Bodah, while engaged in the performance of his regular duties and while attempting to move a heavily loaded truck, sustained an injury by accident arising out of and in the course of his employment, on account of which an award of compensation was made. On a review of the proceeding by the entire board, at the instance of the insurance carrier, the material findings made by Mr. Worstell were set aside and contrary findings were made by the two remaining commissioners, on which compensation was denied. An appeal was prosecuted to the district court, where the order of the majority of the board was affirmed. This appeal is from the judgment of the district court. The majority of the board “expressly” found that the claimant did not give notice of the injury as soon as practicable after its occurrence; that he made no report thereof until March 2, 1926; that “it would have been practicable for him to report” the injury any time between the 24th of June and the 4th of December; that it was not shown that the want of notice, or the delay in giving notice, had not prejudiced the employer; and that it was not shown that the employer, or any of its agents or representatives, had knowledge of the accident. The law requires that notice of the injury be given the employer “as soon as practicable after the happening *683 thereof.” (C. S., sec. 6243.) However, want of notice or delay in giving notice does not bar a proceeding for compensation “ .... if it be shown that the employer, his agent or representative had knowledge of the accident, or that the employer had not been prejudiced by such delay or want of notice.” (C. S., sec. 6246.) The evidence is conclusive that notice of the injury was not given the employer as soon as practicable after the happening thereof. There was nothing to prevent the giving of notice any time after the happening of the accident until December 4, 1925, for claimant continued in the employ of the Coeur d’Alene Mill Company during all that period. He made no attempt whatever to excuse his failure to give notice as soon as practicable except that he did not know it was necessary to give notice or simply neglected to give it. He also made no attempt to show that the employer, its agents or representatives, either had knowledge of the accident or that the employer had not been prejudiced by the delay in giving notice. The failure to give the notice undoubtedly acts as a bar to a proceeding for compensation except in the two instances provided by statute. The burden must be held to be on the claimant, who has failed to give notice of the injury as soon as practicable after its occurrence, to show that the employer, his agent or representative, had knowledge of the accident, or, that no prejudice resulted to the employer on account of the delay in giving notice. (C. S., sec. 6246; In re Murphy, 226 Mass. 60, 115 N. E. 40; Bloomfield v. November, 223 N. Y. 265, 119 N. E. 705; Haynes v. Pullman Co., 223 N. Y. 342, Ann. Cas. 1918C, 1040, 119 N. E. 707. See, also, Rogulj v. Alaska Gastineau Min. Co., 288 Fed. 549; Honnold on Workmen’s Compensation, vol. 1, sec. 210; C. J., Workmen’s Compensation Acts (Pamphlet), p. 105, note 31 (b).) Had the legislature intended otherwise, it would have required the employer to prove that it did not have knowledge of the injury, and that it had been prejudiced by delay or want of notice. There was neither evidence that the employer had knowledge of the injury, nor *684 that the employer had not been prejudiced by the delay or want of notice. Claimant failed to make the required proof and cannot recover. The judgment is affirmed. Givens and T. Bailey Lee, JJ., concur.