Skelly Oil Co. v. Grimm , 193 Okla. 614 ( 1944 )

An examination of the record in this case reflects evidence showing that the foreman under whom claimant was working and the district superintendent of the employing corporation acquired actual knowledge of the time, place, manner, and nature of claimant's injury quite soon after the occurrence thereof.

The record also fails to show any evidence introduced by the employer tending to establish prejudice to it by claimant's failure to give the more formal written notice.

A district superintendent is under the accepted definition of the term prima facie a person "who has oversight of or is in charge of" the affairs of his employer in his district. There is no indication in the record that the district superintendent who, in this case, knew of claimant's injury was not precisely what the title of his position indicates. Receipt of notice by him was therefore binding on his employer under 85 O. S. 1941 § 24.

The award herein is being vacated for the sole and only reason that the State Industrial Commission failed to make a specific finding excusing claimant's failure to give written notice.

It is my opinion that the rule established in paragraph 4 of the syllabus in Protho v. Nette, 173 Okla. 114, 46 P.2d 942, as reiterated and applied in NuWay Laundry Co. v. Trice,182 Okla. 518, 78 P.2d 706, could be applied to this case, and when so applied the failure of the State Industrial Commission to make a formal finding excusing written notice should be declared harmless in this court.

The rule established in the cases last above cited should in the interest of harmony in the law be either (1) applied to the case at bar, (2) distinguished in such a way as to demonstrate its inapplicability, or (3) repudiated by overruling the same.

For the reasons indicated, I respectfully dissent to the opinion adopted by a majority of my associates.

I am authorized to state that Mr. Justice HURST concurs in the above views.