SOUTHWESTERN LIGHT & POWER CO. v. PITTMAN

SOUTHWESTERN LIGHT & POWER CO. v. PITTMAN
1935 OK 1026
50 P.2d 298
174 Okla. 296
Case Number: 25948
Decided: 10/22/1935
Supreme Court of Oklahoma

SOUTHWESTERN LIGHT & POWER CO.
v.
PITTMAN et al.

Syllabus

¶0 Master and Servant--Workmen's Compensation--Review of Awards--Failure to Finding on Issue of Employee's Failure to Give Written Notice of injury.
Where the failure to give written notice of an injury is made an issue before the State Industrial Commission in an action for compensation under the Workmen's Compensation Law it is the mandatory duty of the State Industrial Commission to make a finding upon that issue, and where the record shows that such issue was presented and the Commission failed to make a finding thereon, this court will vacate the award and remand the cause for further proceedings.

Original action in the Supreme Court by the Southwestern Light & Power Company et al. to review and vacate an award of the State Industrial Commission in favor of O. L. Pittman. Award vacated and cause remanded.

V. E. McInnis and S. I. McElhoes, for petitioner.
J. W. Watson, Fred M. Hammer, and the Attorney General, for respondents.

PER CURIAM.

¶1 This is an original action in this court by the petitioner Southwestern Light & Power Company seeking the review and vacation of the award made by the State Industrial Commission in favor of respondent O. L. Pittman.

¶2 Respondent filed a claim with the State Industrial Commission October 17, 1931, seeking compensation for an alleged accidental injury which occurred on July 27, 1931. The petitioner filed an answer denying liability, and subsequently filed a supplemental answer alleging failure of the respondent to give written notice as required by statute and a back of actual notice until approximately two months after the occurrence of the alleged injury and prejudice resulting to the petitioner by reason thereof.

¶3 The question of notice or sufficiency of excuse for failure to give such notice was thus put in issue, but the Commission failed to make any finding thereon. It was the mandatory duty of the Commission to make a finding upon this issue from the competent evidence before it, either excusing such failure, should the evidence warrant the same, or else denying the claim for lack of jurisdiction; the burden of proof upon the issue being upon the claimant. The brief of the respondent confesses error in this respect. Under the authority or Greer County Gins v. Dunnington, 166 Okla. 302, 27 P.2d 630; Dover Oil Co. v. Bellmyer, 163 Okla. 51, 20 P.2d 556; Magnolia Pet. Co. v. Walls, 158 Okla. 199, 13 P.2d 147; Skelly Oil Co. v. Johnson, 157 Okla. 278, 12 P.2d 177; Oklahoma Ry. Co. v. Banks, 155 Okla. 152, 8 P.2d 17; and Pioneer Gas Utilities Co. v. Howard, 154 Okla. 239, 7 P.2d 435, the award herein is vacated and the cause remanded to the Industrial Commission for such further proceedings as the facts may warrant not inconsistent with the views herein expressed.

¶4 Award vacated and cause remanded.