Bennett v. Highway Construction Co.

1935 OK 1099, 53 P.2d 276, 175 Okla. 458, 1935 Okla. LEXIS 920

• Court: Supreme Court of Oklahoma
• Decided: November 12, 1935
• Docket: No. 25957.
• Status: Published

Opinion

RILEY, J)

Jim Bennett filed claim on November 23, 1933, for compensation on account of an injury alleged to have occurred August 25, 1933, while claimant was employed by the Highway Construction Company near Caddo, Okla.

It is admitted that claimant failed to give written notice to his employer as required by section 13368, O. S. 1931, and the State Industrial Commission denied compensation for that reason.

The commission made no determination as to whether the evidence was sufficient to' excuse the failure of claimant to give written notice, although, evidence was adduced upon the issue of employer’s actual knowledge of the alleged injury. The claimant did not plead with particularity his case, in so far 'as notice of the injury was concerned. He is in no position to complain of the respondent’s failure in this regard.

The burden in such a case is upon the claimant to establish that the written notice required by statute for some sufficient reason could not have been given, or that the insurance carrier, or employer, as the case may be, has not been prejudiced thereby.

The claimant failed to dicharge this burden satisfactorily to the commission, and the conclusion reached is not without support in the record.

Order sustained.

McNEILL, C. J., OSBORN, V. 0. J., and BUSBY, PHELPS, and GIBSON, JJ., concur. BAYLESS, WELCH, and CORN, JJ., absent.