*1 Nail, 207 Okl. pressed DeShazer v. herein. & 456; Stucco Fournier Greer,

Plastering v.Co.

P.2d 423. HALLEY, J.,

WILLIAMS, C. V. BERRY, JJ., concur.

IRWIN BLACKBIRD, JJ., dis-

JOHNSON

sent. COMPANY, a AND GAS

SINCLAIR OIL Petitioner, corporation, CHEATWOOD, Indus State Leatrice

Clara Oklahoma State of Commission trial Attorney Wiiliamson, Q. General and Mac Respondents. Oklahoma,

No. 38538.

Supreme Court of Oklahoma. 1, 1960.

March Rehearing on Denial of Corrected

As March *2 requested by the

King testified was he employee employee take the wife to to hospital; employee to lived next door that lease; on the witness the Pierce Jacob King employee’s that went him to home for and arrived took about 8 o’clock A. andM. him hospital; employee to the that told working gasoline witness he had been on a engine (on Yarbrough the the lease); that pumping engine stopped during the night; starting that “starter” en- while a gine employee a sustained attack. heart explained operation Witness the the engine and it stated that was an model old and was by pulling rope and started on a that it was to Employee told hard start. witness starting engine after employee the attack, sustained climbing a second while a ladder oil to service the the tanks on Arney quarter Hills a mile lease a half away Yarbrough Employee the lease. had sustained a former attack in 1954 which he had received treatment. Foster, Jr., Davidson, Angus Ted D. The testimony offered A. of ex- petitioner. pert Tulsa, for medical Douglass, witnesses Thomas E. to the effect that heart attack on sustained November Williamson, Seminole, Q.Mac Bell, Dick subsequent and the death not were Gen., respondents. Atty. by performed the work caused and that WILLIAMS, Vice Chief death Justice. injury was due an accidental Cheatwood, arising out ob- of and in employ- Claimant, Leatrice the course Clara benefit ment. under an award tained Compensation

provision of the Workmen’s Dr. testified for claimant asked J 3.1, State wherein Law, O.S.1951 § hypothetical a question in- Vic- Carl found Industrial Commission cluded all the essential facts out above set to accidental due Cheatwood died tor relating to accidental claimed his arising in the course of jury out of and by employee including the brought proceeding employment. King. Dr. testified in in substance J risk, Company, own by Oil and Gas Sinclair opinion his the strain from the work done petitioner, to review called hereinafter by employee on 28, 1956, ag- November award. gravated the heart condition by caused Victor The evidence discloses Carl attack in 1954 and contributed to caus- Cheatwood, employee, called hereinafter ed death on April pumper and on roustabout a aged a presents Petitioner in the case petitioner; operated by leases lease or specific which we issues shall reduce five ,of day November, he was on 28th general propositions. three It first approximately work at premises at competent argued' there no evidence rea employee King AnM. named o’clock A. tending support sonably ex hospital He took him the at Okémah. cusing giving of statutory written days few after a of'treatment was released . required 85 O.S.1951 notice We 24 hospital § returned to the died but later opinion hospital April 16,1957. Industrial Com- State are giv- largely mission was excuse authorized- to the facts determined case, statutory written- ing should of the circumstances each great Com- by the Industrial deter- award entered left measure be to the ex- written notice mination mission court.” trial *3 find- cused, the Commission State Industrial In Springs Ry. Piggee, Sand Co. v. knowledge ing that actual 196 136, 547, 545, Okl. 163 P.2d cited we not employee was of the of condition approval with Henry v. Chevrolet stat- Co. prejudiced give by the failure the to Taylor, 380, 1024, 188 108 P.2d where Okl. utory written notice. in it is stated: 122, Grimm, 196 Okl. v. Skelly Co. In Oil “ 235, 234, we * * * stated: P.2d 163 It sufficient is to say Commission Industrial “The State admission justi of such statements is the of giving excuse the by spontaneous to authorized fied the nature provided statutory statement, notice written which is in suffi itself a 24, the O.S.1941, on either by guarantee 85 cient § of the trustworthiness suffi- some that notice for ground (1) of such declarations them render to giv- been not have could admissible, cient reason they if made under are the that the en; ground (2) or immediate influence of the occurrence employer, as the or carrier relate, surance to they which and it not nec prejudiced been may be, not essary has case that the declarations be so strict statutory give the ly failure by contemporaneous to with occur written rence to they which relate as to be ad missible under the competent so-called ‘verbal evidence act’ there “Where doctrine, the element being find- of time im tending sustain reasonably to portant only purpose for the or the insurance of deter employer ing that the mining not whether the declaration may be, has carrier, case as made speaker when the give the to was under the failure prejudiced been stress of nervous the trial excitement a re as notice and written statutory sult of the Industrial occurrence commissioner, to the extent or the State that the reflective giving of faculties were Commission, stilled has excused and the utterance on that therefore a sincere written notice expression of impressions his actual vacated will not award be ground, and belief. Wigmore See required notice on Evidence give the failure (2nd Ed.) sec. prescribed.” 1750. This been the manner has in the time and tenor of numerous Oklahoma decisions v. Natural Gas Co. also, Oklahoma See, upon question. See Gibson Oil Co. 225; 627, 105 P.2d 187 Okl. White, John- v. Westbrooke, 160 26, Okl. 16 P.2d 368, P.2d 266. Penwell, 171 197 Okl. ston v. 127, 129; Feenburg Supply v. Co. compe argued there is no next It is Pierce, 185 662, 640; Okl. 95 P.2d support tending reasonably evidence tent Shawnee-Tecumseh Traction v. Co. employee sustained an ac finding Henry, 110 160, Okl. 894; 236 P. Her argues this Petitioner injury. cidental ring Hood, v. 55 737, Okl. 155 P. 253.” testimony lay wit of connection important is an element in deter em facts stated as to nesses mining whether statements are gestae rss competent. them is We do not ployee necessarily but not controlling. Mason v. given by wit The agree. Mootz, 461, 73 competent 240; Idaho P.2d 253 see, King properly ad ness Gaylor, Okl., also, Towne In Huffman v. v. Northwestern Mut. mitted. Life Ins. isit stated: Milwaukee, Wis., P.2d Co. Idaho 70 P. 364; 2d Metropolitan Sullivan v. admissibility

“The Life Ins. part gestae Co., as a the res statements 96 Mont. 29 P.2d 1046. argues that the medical Petitioner also evidence was The tes- in conflict. timony do employee the effect evidence discloses that Dr. that the J ordinary resulted work ing usual an accidental aggravated causing heart attack thereof if the former heart condition results injury. sufficient to did not an accidental sustain the of the State constitute & Mining Industrial applicable King- City The are Carden cases Commission. Jenkins, fisher v. Yost, supra, Co. v. 193 Okl. it is Milling stated: 969; Younger, 188 Terminal Oil Mill Co. v. “Where, in a proceeding before 542; & Boettcher Oil P.2d Commission, disability Industrial Lamb, P.2d Gas 208 Okl. Co. v. alleged to exist is of such character Department 277; Highway require as professional skilled and *4 Powell, In Okl., 1189. men to determine the cause and extent Powell, supra, it is Department Highway v. thereof, question is one of science stated: and necessarily proved must be of Na per- case professional to the of skilled refer “Petitioners Lout, sons, 179 Company finding v. and a of fact based there- Biscuit

tional case and reasonably supported This when 259, 65 P.2d 497. will not Okl. Wells, 147 Okl. be disturbed.” Leader Co. v. Oklahoma distin been 751, have 296 P. 294, Award sustained. subsequent in many times so guished to further WELCH, need see no opinions JOHNSON, that we BLACKBIRD except say BERRY, JJ., distinctions discuss concur. fact that upon the they are based that HALLEY, IRWIN, JJ., any strain of no evidence there JACKSON dissent. Termi disability. See a caused which Younger, 188 Okl. Mill Co. v. nal Oil IRWIN, (dissenting). Justice Bakery 542, Knotts P.2d my opinion In the evidence is insufficient P. Freudenthaler, 188 Okl. v. justify finding by a Bateman, State Industrial County v. Choctaw 2d 540. petitioner Commission that had actual 465, 468, was one 16, 252 P.2d 208 Okl. knowledge of condition of the analyzed decedent we which the last cases prejudiced and was the failure to There cases. the related discussed give it stated: is “ compensation The claim for was filed in all these language used ‘The 6, 1957, November alleged injury for an is the strain it cases indicates suffered March, November In accidental constitutes hospital deceased was admitted to the unusual incident any If there is jury. pneumonia with April, and died in as evi- mentioned it or condition from a heart attack. Deceased had filed finding as support the dence hospitalization, several claims and sick P.2d 1190.] [258 strain.’” during benefits his lifetime and his after supporting competent evidence There death, claimant, admittedly who gave no employee sustained an finding that the petitioner, notice to filed additional claims injury. accidental hospitalization expense. and medical All of these claims were for insurance bene- evidence argued is not Finally it non-occupational fits for health conditions. sustain the sufficient petitioner injury question, an accidental Without had resulted employment. knowledge claimant had during disability a or sustained .attack, be must determined suffered a heart of fact and but at no time a City Kingfisher deceased or claimant ever evidence. did indicate to by medical P.2d petitioner disability 1094. The decedent’s or death Jenkins, an accidental or result of was due to in the

injury, arising course out of and they employment; show ever nor did purview

any inclination under the to come until Compensation Act

of Workmen’s for death benefits

claimant filed her claim

with Commission. the State Industrial be-

my opinion was lead to disability

lieve a health condition injury would

and not the an result of prejudiced by

be failure decedent peti-

or claimant advise to indicate or an disability that the result

tioner of and in arising

accidental out employment.

course of his reasons, respectfully I foregoing

For the

dissent.

I am authorized to state Mr. Justice ex- the views herein concurs in

JACKSON pressed. PECK, Error,

L. F. Plaintiff ex rel. DEPARTMENT

STATE of Oklahoma the State Okla OF HIGHWAYS of homa, Defendant Error.

No. 38164.

Supreme Court Oklahoma. 29, 1960.

March