This is an original proceeding before this court to review an award of the State Industrial Commission made to Chester R. Garrett on May 22, 1931, which award is as follows:
"Order. "* * * (1) That on June 25, 1930, the claimant, Chester R. Garrett, was in the employ of respondent herein and engaged in a hazardous occupation covered by and subject to the provisions of the Workmen's Compensation Law; that in the course of and arising out of said employment claimant, on June 25, 1930, sustained an accidental personal injury, the nature of which was dilatation of the heart.
"(2) That following said injury, claimant worked from June 25, 1930, until July 9, 1930, when he was forced to quit work on account of said accidental injury, and has been from said date and was at the time of this hearing totally disabled from the performance of ordinary manual labor.
"(3) That for about 20 days during said period from July 9, 1930, to date of hearing, the claimant supervised the building of a power plant, an occupation which required no physical labor, for which he received the sum of $100.
"(4) That the average wage of claimant at the time of said injury was $8 per day.
"The Commission is of the opinion, by reason of aforementioned facts, that claimant is entitled to compensation from July 9, 1930, to May 18, 1931, less the statutory five days waiting period, being forty-four (44) weeks, at $18 per week, or the sum of $792, less the $100 above referred to, leaving a balance of $692, and continued thereafter weekly at $18 per week until otherwise ordered by the Commission, and also such reasonable medical expense as has been incurred by claimant on account of said injury.
"It is therefore ordered that within 15 days from this date, the respondent or insurance carrier herein pay the claimant, Chester R. Garrett, the sum of $692, as above set out, and any compensation remaining due from May 18, 1931, to date, and continuing thereafter weekly, at the rate of $18 per week, until otherwise ordered by this Commission, and also pay such reasonable medical expense as has been incurred by claimant by reason of said injury. * * *" (R. 71, 72.)
The petitioners urge as grounds for review of said award that the Commission *Page 77 had no jurisdiction to make the order because the claimant failed to give the statutory notice of his injury and failed to show that the employer had not been prejudiced by the failure to give the notice.
Respondent in his brief in answer to petitioner's first proposition states that petitioner filed no answer before the Commission alleging lack of notice, and on page 5 of his brief makes the following statement: "The petitioner did not 'file any answer or object in writing setting up any defense, but contented themselves with the cross-examination of the claimant.' "
We have examined the record in said cause and find on page 5 thereof the answer of the respondent and insurance carrier, and paragraph 3 of said answer in substance states that as a further denial and defense to the claimant's claim respondent and insurance carrier allege that claimant did not give proper notice of his alleged injury within a reasonable time — therefore, their rights have been prejudiced.
We prefer to rely upon the statements in the record rather than the statement of counsel in their brief as to the contents of the record.
The record discloses that respondent was in the employ of the McMann Oil Company, June 25, 1930. Respondent claimed, while lifting on a heavy piece of timber, he slipped and injured himself, causing dilatation of the heart. Respondent continued to work until July 9, 1930. Respondent testified that in September or October, 1930, he told the superintendent of petitioner that he thought he would fill out a blank and send it in requesting compensation (R. 15), and, on January 28, 1931, respondent filed claim for compensation. After the date of injury claimed by respondent, he consulted his family physician, but never made any request on petitioner to furnish medical treatment, as shown by the record:
"Q. Did you ask your employers for permission to go to Dr. James in this case? A. No, sir. Q. Have you ever asked them to furnish you with medical attention? A. No, sir." (R. 15.)
The record, as outlined, shows that it was either three or four months from the date of the accident until respondent gave petitioner any notice whatsoever of the injury, and that it was seven months before he formally filed his claim.
Section 7292, C. O. S. 1921, reads as follows:
"Section 7292. — Notice — Requirements. Notice of an injury for which compensation is payable under this act shall be given to the Commission and to the employer within 30 days after injury. Such notice may be given by any person claiming to be entitled to compensation, or by someone in his behalf. The notice shall be in writing, and contain the name and address of the employee, and state in ordinary language the time, place, nature and cause of the injury, and be signed by him or by a person on his behalf. It shall be given to the Commission by sending it by mail, registered letter, addressed to the Commission at its office. It shall be given to the employer by delivering it to him or sending it by mail by registered letter addressed to the employer at his or its last-known place of residence; provided, that if the employer be a partnership, then such notice may be given to any one of the partners, and if the employer be a corporation, then such notice may be given to any agent or officer thereof upon whom legal process may be served, or any agent in charge of the business in the place where the injury occurred. The failure to give such notice, unless excused by the Commission, either on the ground that notice for some sufficient reason could not have been given or on the ground that the insurance carrier or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this act."
Said section was passed upon by this court in the case of Oklahoma Natural Gas Corp. v. Baker, 148 Okla. 277, 298 P. 875, and in construing said section this court held (syllabus No. 2):
"Under section 7292, C. O. S. 1921, providing that notice of an injury for which compensation is payable under the Workmen's Compensation Act of Oklahoma shall be given to the employer within 30 days after injury, failure of the employee to give such notice will bar a claim for compensation under the act, unless the employee shall excuse such failure by affirmative proof that such notice could not have been given, or that his employer was not prejudiced thereby"
— and in the body of said opinion the court said:
"The question here presented has been before this court in several cases, and it is quite uniformly held in considering the provisions of section 7292, C. O. S. 1921, relative to the notice and the effect of failure to give same, that, unless it is shown that the employer had actual knowledge of the injury at the time thereof, the burden of proof is upon the employee or claimant to show (1) that for some sufficient reason the notice could not be given, or (2) that the insurance carrier or employer, as the case may be, has not been prejudiced thereby.
"The question of whether the insurance carrier or employer, as the case may be, has not been prejudiced by the failure to give the notice, is a question of fact to be *Page 78 found by the Commission like any other question of fact, and its findings thereon are binding to the same extent as its findings upon any other question of fact.
"The question raised seems to be definitely settled in this state in favor of the petitioner in the following cases: Cameron Coal Co. v. Collopy, 102 Okla. 207, 228 P. 1100, 1102; Fidelity Union Casualty Co. v. St. Indus. Commission,130 Okla. 65, 265 P. 131, and Ford Motor Co. v. Hunt, 146 Okla. 105,293 P. 1038."
In the case of Cameron Coal Co. v. Collopy, 102 Okla. 207,228 P. 1100, this court, in discussing the question of notice under the section hereinbefore cited, held:
"The object of the notice obviously is to give the employer notice of the injury and surrounding circumstances in order that he may make an investigation with reference thereto. He should have such information to determine if the individual claiming was really an employee or such a person as could claim the benefit of the statute. Many large concerns employ transient laborers, and imposition might arise were this information not definite. He should be informed of the time and place in order that he may seek witnesses who were present or near to determine if the injury actually occurred there or at some time when the claimant was not engaged in his employment. It is not enough that claimant may say months later that no one else was present. The employer should have timely opportunity to investigate and see if the allegation is true. Had he been given an opportunity to show facts, he might be able to show that others were, in fact, present, or that the injury, in fact, occurred a distance from his plant and on the business or pleasure of the claimant. It would be a peculiar rule that would permit a claimant to wait months until the means of information were closed, then come in with his own case and claim the employer is not prejudiced because 'no one else was there.' The notice must also show the nature of the injury in order that the extent of the employer's liability may be determined by him or for him. It is also necessary that the cause be shown in order that the employer may determine if the hazardous employment was the cause or some fact or circumstance independent of the employment."
In the case at bar there is no finding by the Commission that the petitioners have not been prejudiced by the failure of respondent to give the required statutory notice, or that the notice could not be given, so as to come within the requirements of the holdings cited, supra.
Under the holdings of this court, it was necessary that respondent make a showing that he could not give the notice or that petitioners were not prejudiced because of the failure to give the required notice.
Having failed to give the prescribed notice within the statutory time, and having failed to bring himself within the conditions of the statute and decisions of this court, the failure of respondent to give the required notice and the failure of the Commission to make the required findings, and the failure of the evidence to support such constructive finding under the general award or order, are fatal to respondent's cause of action.
After a careful consideration of the record in said cause and the authorities thereon, we hold: That the Commission did not acquire jurisdiction to make a valid award in said cause.
The petition to vacate said award is granted and the award is vacated.
RILEY, HEFNER, SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. LESTER, C. J., and McNEILL, J., concur in the conclusion. CLARK, V. C. J., dissents.
On Rehearing. PER CURIAM. Rehearing denied.
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