Skelly Oil Co. v. Johnson

SWINDALL, J. This is an original proceeding to review an award of the State Industrial Commission in favor of Marvin Lois Johnson and against the Skelly Oil Company, the State Industrial Commission being made a party respondent in accordance with the terms and provisions of the Workmen’s Compensation Law. Hereafter the petitioner will be referred to as respondent, and the respondent Marvin Lois Johnson will be referred to as the claimant. On November the 29th. 192i9, more than six months after the date of the alleged injury, the respondent was advised by the Commission of' a claim filed by Marvin Lois Johnson, who claimed he was injured on May 15, 1929. Claimant had worked for employer under the name of L. M. Johnson. No other information was contained in this notice. The claimant alleges that while working for respondent on its J. C. Green oil and gas mining lease, covering lands located near Maud, in Seminole county, Okla., he was hit in the back part of his head by the frame-work of an engine house which was being torn down, and that such injury caused epilepsy. Claimant never at any time gave written notice of his injury to respond-dent, and respondent did not have actual notice thereof until some six or seven months after the date of the alleged injury. Hearings were held before Commissioner F. L. Roblin on February 4th, 21st, and 24th, and March 13th, and April 8, 1930, and before Chairman Thos. H. Doyle on April 4, 1930. After the final hearing and before the order appealed from was entered by the Commission. respondent filed á request for special findings of fact, but in making its order *279 the Commission refused to incorporate in it any of the findings of fact requested by respondent. On January 9, 1931, the trial Commissioner, F. L. Roblin, entered her order denying the claimant compensation, wherein she made the following findings of fact: “1. That from May 15, 1929. to May 31, 1929, inclusive, Marvin Lois Johnson was employed by respondent, Skelly O'il Company, and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen’s Compensation Law; “2. That, arising out of and in the course of such employment with respondent herein, claimant sustained an accidental injury on the 26th day of May, 1929; that said accidental injury did not result in any disability; “3. That prior to May 15, 1929, claimant suffered from a disease known as epilepsy, and is now suffering a disability as a result of said disease; that said epilepsy was not caused, aggravated, or in any way accelerated by said aforementioned accidental injury; “4. That claimant did not give respondent written notice of said accidental injury as required by section 7292, C. O. S. 1921, nor did the claimant show that said notice for some sufficient reason .could not have been given. That claimant failed to overcome the allegation and proof of prejudice to respondent by failure to give written notice.” The findings of the trial Commissioner were not approved by a majority of the Commission. The petitioner contends that the Commission should have approved the findings of the trial Commissioner, who had an opportunity to observe the witnesses upon the witness stand and their manner of testifying and the reasonableness or unreasonableness of the story told by them, or should have granted the petitioner an opportunity to produce the witnesses before the Commission in order that the Commission might have an opportunity to see and hear the witnesses and observe their appearance, manner, and demeanor while testifying, and make the other usual observations that the trier of the facts is granted. Some of the members of this court are inclined to that view, while a majority of the court has announced the rule of law otherwise. Aetna Life Ins. Co. v. Price, 152 Okla. 52, 3 P. (2d) 732. At least, that matter was called to the attention of the court in a dissenting opinion of Mr. Justice Andrews, and the court refused to reverse the case upon that ground. On June 27, 1931, more than 14 months after the date of the last hearing in this case, the Commission entered its award wherein it found that claimant on May 15, 1929, sustained an accidental personal injury arising out of and in the course of his employment with employer by having his head, shoulders, and arm injured; that by reason of said accidental injury claimant has been since the date of said injury temporarily totally disabled from the performance of ordinary manual labor, and was, at the time this order was made, temporarily totally disabled from th,e performance of ordinary manual labor; and that the average daily wage of claimant at the time of said injury was four dollars per day. Employer was ordered to pay claimant $1,687.75 as compensation, being compensation from the 15th day of May, 1929, to June 27, 1931, computed at the rate of $15.39 per week for a period of 109 weeks and 4 days, and to continue the payment of compensation at the rate of $15.39 until the further order of the Commission. This finding in part is not sustained by any competent evidence. The claimant did not commence work for petitioner until May 16, 1929, and if he was injured as a result of an accidental personal injury, the alleged accident did not occur prior to the tearing down of the engine house on May 27, 1929. So, allowing five day waiting period, the Commission would not under any circumstances be warranted in awarding compensation commencing a day before the claimant claims he was employed and several days prior to the date the injury is claimed to have occurred. The Commission also found that the partial disability continued over a period of more than 14 months after the last hearing, concerning which period of time there was no evidence. There may have been a change in the condition of claimant after the date of the last hearing and before the date of the award. He might have fully recovered from his injury within 30 days after the hearing and returned to work and not be entitled to compensation thereafter. Where the evidence warrants a finding that tfiere was a temporary partial disability, the Commission should award compensation to the date of the last hearing to continue thereafter for such a period of time as the Commission may find from the evidence it Is likely to continue, not exceeding the maximum authorized by the Workmen’s Compensation Law, and then, if there is a change in condition for the better or the worse, the Commission may, upon its own motion or upon the application of either party, reduce or increase the award according to the facts. Upon the issue that the claimant was suffering with epilepsy prior to the date of the alleged injury and that the alleged accidental injury did not cause or aggravate his condition, the petitioner offered the evidence *280 of several witnesses. There was evidence offered by the claimant that the epilepsy was the result of the injury or was aggravated by the injury. The petitioner requested the State Industrial Commission to make a finding upon this issue, which the Commission refused or failed to do. We think the petitioner was entitled to a finding by the Commission on this 'issue. If the Commission finds that the epilepsy was not caused by the alleged accidental 'injury, then the claimant would not be entitled to compensation ; if it finds that the epilepsy was caused by the injury and there is a permanent result, there should be no difficulty in settling the ease. If the Commission finds that the claimant had epilepsy and It was aggravated by the accidental injury, and the Commission is later called upon to determine the issue of permanent disability or partial permanent disability, they must determine whether or not the partial permanent disability or permanent disability was due to the aggravation of the epilepsy or whether it resulted from the epilepsy that the claimant had, if he did have epilepsy, prior to the injury. Section 7294, C. O. S. 1921, as amended by section 7, chapter 81, Session Laws 1923, among other things, provides that “upon the application of either party the Commission shall order a, hearing, and as soon as practicable, after a claim for compensation is submitted under this section, or such hearing closed, shall make or deny an award determining such claim or compensation, and file same in the office of the Commission, together with the statement of Its conclusions of fact and rulings of law.” It is next contended by the respondent, petitioner herein, that claimant failed to give employer written notice of the injury within 30 days as required by section 7292, O. O. S. 1921, and that the failure of the Commission to make a finding upon this issue constituted material error. It is admitted by the respondents that the claimant did not at any time give a written notice of his injury to h'is employer in compliance with said section, and that the Commission, although requested to do so, did not make a finding excusing claimant for his failure to give such written notice, either on the ground that for some sufficient reason notice could not have been given or on the ground that the employer had not been prejudiced thereby, or that the employer had actual notice of_ the 'injury at the time. It is contended by claimant that the respondent had actual notice of the injury. A careful examination of the record convinces us that the contention of the respondent, petitioner herein, is well taken. This court has repeatedly held that when it appears that written notice has not been given as required by section 7292, supra, the burden rests upon the claimant to prove by competent evidence that for some sufficient reason notice could not have been given or that the insurance carrier or employer, as the case may be, has not been prejudiced thereby, and that where the claimant's failure to give written notice of an injury 'is in issue, the Industrial Commission should make a finding excusing or refusing to excuse such failure, and where issue arises whether the employer had actual notice of injury excusing claimant’s failure to give written notice, the State Industrial Commission should make a finding of fact in that regard. Pioneer Gas Utilities Co. v. Howard, 154 Okla. 239, 7 P. (2d) 435. See, also, Ford Motor Company v. Hunt, 146 Okla. 185, 293 P. 1038; Velie Mines Corporation v. Rogers, 150 Okla. 185, 1 P. (2d) 353; McMann Oil & Gas Co. v. Garrett, 155 Okla. 76, 7 P. (2d) 686; Oklahoma Railway Company v. Banks, 155 Okla. 152, 8 P. (2d) 17; Turner v. Earl W. Baker & Co., 153 Okla. 28, 4 P. (2d) 739; Olsen Drilling Company v. Tryon, 150 Okla. 18, 300 P. 663; W. Edmiston Drilling Company v. Russell, 151 Okla. 108, 1 P. (2d) 374; Hales v. Oklahoma Producing & Refining Company of America, 109 Okla. 286, 282 P. 42; Cameron Coal Company v. Collopy, 102 Okla. 207, 228 P. 1100; Oklahoma Natural Gas Co. v. Baker, 148 Okla. 227, 298 F. 875. There is no contention that the claimant could not have given the written notice, and there is no competent evidence that the respondent, petitioner herein, had actual notice. The claimant claimed that L. M. Bice had personal knowledge of the injury. However, there is nothing in the record to show that he was a foreman, superintendent, or employee required to give notice to the employer of an accidental injury. Section 7292, G. O. S. 1921, provides, among other things, that notice of an injury for which compensation is payable under the compensation 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, ana state in ordinary language the time, place, nature, and cause of the injury, and shall be filed by him or by a person in his behalf. 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. We have held that actual notice to *281 any agent or officer of the corporation upon whom legal process may he served or any agent in charge of the business at the place where the injury occurred, or such actual notice to an individual or to a member of a partnership or any agent in charge of the business of such individual or partnership at the place where the injury occurred, of the facts which the notice is required to contain, relieved the employee of the duty of serving the written notice, for the reason that the employer had all the knowledge that the written notice would impart, but we have never held, and we do not feel that we would be justified in holding, under a liberal construction of the Workmen’s Compensation Law, that actual notice of facts which do not impart notice to the employer or Its agent of the facts that the written notice must convey, or that actual notice of facts to an employee of an employer corporation who does not sustain such relation to the corporation as agent or officer thereof upon whom legal process may be served or agent in charge of the business at the place where the Injury occurred, or a superintendent or foreman in the place where the injury occurred and required, in the latter instance, under the rules of the company to report accidental injuries to the employer, are sufficient to relieve the employee and claimant of giving written notice under section 7292, supra. This is in harmony with our former holding, and in holding that actual notice to a superintendent or foreman who is required under rules of the company ■to report accidental injuries to the employer relieves the claimant of the duty of giving written notice, goes one step further than most of the courts have consented to go. 'It is not shown by the record in this case that the petitioner had such notice, and the Industrial Commission has not excused the failure to give such notice upon the ground that the employer had not been prejudiced thereby. The pleadings and the evidence made this a material issue for the Commission to pass upon. The Commission is the trier of the facts, and if there is any competent evidence to sustain their findings, this court is bound by the findings as made. However, it must make findings of fact before this court is authorized to review the same and determine whether or not there is any competent evidence to sustain its findings. In Prairie Oil & Gas Company v. King, 109 Okla. 213, 235 P. 522, we held: “It is also provided that it is the award or the decision that 'is to be reviewed. The validity of the award must depend upon the correctness of the rulings of law made by the Commission. The correctness of such rulings of law, 'in turn, depends upon the conclusions of fact of the Commission. It thus appears that this court cannot review an award in a case where there are no conclusions of fact or rulings of law made by the Commission, or, as in the instant case, where such conclusions and rulings are too indefinite and uncertain for judicial interpretation. In such case, this court will remand the cause that the Commission may perform its functions and duty in this behalf. In a long line of decisions, this court has held that the findings 'of the Commission on questions of fact will not be reviewed by this court where there is a quantum of evidence to support same. See Ohio Drilling Co. v. State Industrial Commission, 86 Okia. 139, 207 P. 314. 25 A. L. R. 367, and numerous decisions both prior and subsequent. Eor this reason, 'it is essential that the Commission make 'its conclusions of fact in order that this court may consider whether the rulings of law by the Commission are supported by the facts, and whether the award made comports with the facts so found and the rulings so made.” This case was cited and approved in Clark v. Highway Commission of Oklahoma, 146 Okla. 38, 293 P. 269. This same question was before the appellate court of Indiana in Standard Cabinet Co. v. Landgrave, 73 Ind App. 625, 128 N. E. 358, wherein the court said: “Appellee finally contends that the evidence shows that appellant had sufficient knowledge of appellee’s alleged Injury, and that a reasonable excuse existed for the latter’s failure to give the former written notice thereof. If it be admitted that this is true, such fact would not aid appellee, in the absence of a finding to that effect, as the award must be sustained, if at all, by the facts found.” To the same effect is the holding in Bloomfield v. November, 219 N. Y. 374, 114 N. E. 805. The syllabus of this case is as follows : “The Industrial Commission’s ruling that failure to give written notice of injury ‘is hereby excused,’ without finding of facts, was not sufficient compliance with Workmen's Compensation Act (Consol. Laws, c. 67), sec. 18, barring action in such cases unless Commission excuse failure to give written notice on ground that such notice could not have been given or that the employer had not been prejudiced, and their award will be reversed.” And in the opinion the court made the following statement: “The Legislature has enumerated reasonable conditions under which failure to serve the notice may be excused, and we think that the attention of the Commission should be fastened upon the question whether upon the proofs in a given case the circumstances do exist which are sufficient to iustify such failure, and that if they do exist, that fact *282 should be properly stated as one of the facts which constitute the basis of the award. We do not think that it is good practice that the service of such notice should be excused without any finding -of the existence of conditions which justify such action on the part of the Commission or statement even of the theory on which the excuse has been granted.” The Commission having failed to pass upon this issue, the award must be vacated and the cause remanded to the Commission to determine the same. The claimant contends that under section 7334, C. O. S. 1921, ha'is excused from giving written notice because he is a “minor dependent.” We fall to see where section 7334, supra, has any bearing upon the case under consideration. Section 116 of the New York Compensation Law is the same as section 7334 of our Workmen's Compensation Law; In fact, this section of our law was borrowed from New York. It is as follows: “No limitation of time provided in this act shall run as against any person who is mentally incompetent or a minor dependent so long as he has no committee, guardian or next friend.” In the case of Beagle v. Groff, 191 N. Y. S. 307, in construing that statute, the New York court said: “The word ‘dependent,’ as used in the Compensation Law, has a definite and unequivocal meaning. He is a person dependent for support upon a deceased relative, on account of whose death in the course of liis employment a recovery of death benefits is sought to be made from the employer. Workmen’s Compensation Law, sec. 16. A ‘minor dependent’ is a brother, sister, or grandchild, under the age of 18 years, of a deceased person thus killed, upon whose support he or she was dependent. Workmen’s Compensation Law. see. 16. subd. 4. This claimant is not seeking recovery of death benefits for the death of another upon whom he was dependent, but claims compensation for injuries inflicted upon himself. 1-Ie is, therefore, in no sense a claimant who has the character of a ‘minor dependent,’ and, consequently, is not within the exception made by section 116. “It is said that this is a narrow construction of the section. On the contrary, It is a correct reading of legislative words which themselves, without ambiguity, express a narrow legislative intent. Any other reading completely eliminates the word ‘dependent’ from the section, and. under the transparent garb of interpretation in reality constitutes judicial legislation.” Bouvler’s Law Dictionary defines a “dependent” as: “One who derives supp'ort from another.” And in Schneider on Workmen’s Compensation Law, vol. 2 (2d Ed.), p. 1196, the following definition of “dependent” appears: “A ‘dependent,’ in law, is one who is sustained by another or relies for support upon the aid of another; who looks to another for support and relies upon another for reasonable necessaries consistent with the dependent’s position in life. * * *” This court in United States Fidelity & Guaranty Co. v. Cruce, 129 Okla. 60, 263 P. 462, 56 A. L. R. 879, held that: “* * * An 18 year old employee may maintain in his own name a proceeding against his employer for compensation foían accidental injury arising out of and in the course of his employment.” The New York Workmen’s Compensation Act provides for compensation for accidental injuries resulting in death. In adopting certain sections of the New York law the Legislature of this state eliminated the provision allowing compensation for injuries resulting in death for the reason they felt that such provision might be in conflict with section 7 of article 23 of the Constitution of Oklahoma, which provides that: “The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.” It Is evident that in adopting what is our section 7334 the words “minor dependent” were permitted to remain in the section by inadvertence and really have no force when construed in connection with the other sections of our act. We, therefore, hold that section 7334, supra, providing that no limitation of time provided in this act shall run as against any person who is mentally incompetent or a minor dependent, so long as he has no committee, guardian or next friend, does not apply to a “minor employee” who is mentally competent, claiming compensation for himself. Under the Workmen’s Compensation Law of this state a minor employee who is mentally competent may maintain in his own name a proceeding against his employer for compensation for an accidental injury arising out of and in the course of his employment. It is further contended by the petitioner that the Industrial Commission received as evidence the opinion of expert) witnesses without requiring the claimant to submit to the witness the facts offered in evidence upon which the expert based his opinion. This court held in the case of Fitzsimmons v. State Industrial Commission, 120 Okla. 31, 250 P. 111-112, that: “The opinion of skilled physicians is com *283 petent to prove the cause, extent, and duration of the injury, and is frequently the only evidence that the nature of the case will permit; but the opinion of an expert, to be competent, must be based upon facts admitted or established.” To the same effect is Boggs v. United States Fidelity & Guaranty Co., 139 Okla. 155, 281 P. 226-228. This seems to be the well-settled rule of law in this jurisdiction, and in all other jurisdictions as far as our attention has been called to the same, and we adhere to the rule announced in these cases. There are many other assignments of error briefed and presented by the petitioner. They seem to be well settled by the former decisions of this court. We assume that the Industrial Commission will follow the rule of law as declared by this court upon the other questions briefed in the event of a retrial of this action, and we do not deem it necessary to further discuss said assignments, as they present no new questions. For the reasons herein stated, the award is vacated, and this cause is remanded to the State Industrial Commission to make findings of fact upon the controverted issues consistent with the evidence that may be offered by the parties and in accordance with the views herein expressed. RILEY, HEFNER, CULLISON, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., dissents. LESTEIR, C. J., and CLARK, Y. C. J., absent.