86 P.2d 284 | Okla. | 1938
On November 4, 1935, the claimant, respondent J.D. Thurston, filed with the State Industrial Commission his claim for compensation alleging an injury as of August 18, 1935, to his right leg and foot caused by a falling rock in a mine in the course of his employment with petitioner.
The petitioner denied the injury, liability therefor, and notice thereof.
On December 17, 1936, an award based on actual notice was made claimant to compensate for injuries alleged and also compensating for an injury to the knee. Temporary total disability was allowed from September 2, 1935, to June 30, 1936. Henry Adamson, originally a respondent, was absolved from liability.
On review one issue is presented, and that is failure of evidence to sustain a finding of accidental injury arising out of and in the course of the alleged employment. The order and award was based on the positive testimony of claimant, whereas Adamson testified the mine was not running on the day claimed, Sunday. Earl Wise, bookkeeper, testified claimant did not work on the day claimed, and that the mine did not operate on Sundays with one exception. *179 Others said by claimant to be present presented such negative testimony. Medical testimony tended to corroborate the fact of an accidental injury.
Petitioner relies upon McKeever Drilling Co. et al. v. Egbert,
Theretofore and long existing, the rule prevailed that the factum of an injury arising out of and in the course of employment fell under the rule that the commission's finding thereon would not be reversed if supported by competent evidence. Oklahoma Gas Elec. Co. et al. v. Santino et al.,
In City of Kingfisher et al. v. Jenkins, supra, Mr. Justice Bayless, speaking for the court, said:
"With respect to the first proposition of petitioners, there was evidence reasonably tending to support the finding of the commission, and as we have said in Oklahoma Gas Elec. Co. v. Santino,
"'The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and, where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate the award'."
Sain v. Moran-Buckner Co. et al.,
In fact the McKeever Case, supra, shows that a rule was stated rather than a course made, for there the evidence was reviewed, found to be in conflict and the award sustained.
So in Tulsa Rig Reel Mfg. Co. v. Case et al.,
We have reviewed the evidence, and find the positive evidence of claimant to support the finding of which complaint is made, and some corroboration of it. The evidence of petitioner is negative.
The award will be sustained.
OSBORN, C. J., and CORN, HURST, and DAVISON, JJ., concur. WELCH, J., concurs in conclusion. BAYLESS, V. C. J., and GIBSON, and DANNER, JJ., absent.