GLENCLIFF DAIRY PROD. CO. v. OKLAHOMA STATE IND.

GLENCLIFF DAIRY PROD. CO. v. OKLAHOMA STATE IND.
1956 OK 301
303 P.2d 1115
Case Number: 37148
Decided: 11/20/1956
Supreme Court of Oklahoma

GLENCLIFF DAIRY PRODUCTS COMPANY AND MASSACHUSETTS BONDING
AND INSURANCE COMPANY, PETITIONERS,
v.
OKLAHOMA STATE INDUSTRIAL COMMISSION, RESPONDENTS.
IN THE MATTER OF THE DEATH OF HERBERT W. SMITH, JR., DELORES SMITH.

Syllabus by the Court.

¶0 Where failure to give notice of an injury as required by

Petition for review from the State Industrial Commission.

Original proceeding brought by Glencliff Dairy Products Company, Employer and its Insurance carrier, Massachusetts Bonding and Insurance Company, to review an award of the State Industrial Commission made to Delores Smith, Claimant. Award vacated with directions.

Truman B. Rucker, Bryan W. Tabor, Gurney G. Cox, and Dennis J. Downing, Tulsa, for petitioners.

Hughey Baker, William R. Fulton, Tulsa, and Mac Q. Williamson, Atty. Gen., for respondents.

BLACKBIRD, Justice.

¶1 This is a proceeding under the Death Benefit Provision of the Workmen's Compensation Law,

¶2 The evidence discloses that Herbert W. Smith, husband of Delores Smith, was route man for the Glencliff Dairy Products Company, driving a delivery truck in that capacity. It is claimed that sometime in the latter part of August, 1954, he sustained an injury arising out of and in the course of the employment with the employer when he struck his head on a delivery truck door. He was hospitalized in November, and on the 6th day of December, 1954, was operated for a brain injury. He died December 17th, 1954.

¶3 After a hearing the State Industrial Commission entered its order sustaining the claim for death benefits and awarding Smith's dependents the statutory amount upon finding his death was caused by an accidental injury in the scope of his employment.

¶4 This proceeding is brought by the employer and the insurance carrier, hereinafter called petitioners, to review the award.

¶5 The petitioners present three propositions. First, it is argued that there is no evidence sustaining the finding of the State Industrial Commission that Herbert Smith suffered an accidental injury arising out of and in the course of his employment. Second, it is argued that there is no competent evidence tending to support the finding of said Commission that Herbert Smith's death was the result of an accidental injury. The third proposition presents the issue of failure to give the statutory written notice provided by

¶6 We are of the opinion that the failure to make a finding on the issue of notice requires that the award be vacated. The petitioners raise the issue of notice by their answer. We have repeatedly held that where the failure to give the statutory written notice required by

"Where failure to give notice of an injury as
required by

¶7 The award of the State Industrial Commission is vacated and the cause remanded to said Commission with directions to make a finding as to notice, in accord with the views herein expressed.