
    McClenahan v. Oklahoma Ry. Co. et al.
    No. 17596.
    Opinion Filed March 20, 1928.
    Rehearing Denied May 29, 1928,
    (Syllabus.)
    1. Master and Servant — Workmen’s Compensation Lqw — Claim Barred by Failure to File Within Year After Injury.,
    Where an injured employee fails for more than a year to file his application with the State Industrial Commission for compensation, the same is barred by section 7301, C. O. S. 1921.
    2. Same — Bar of Statute not Prevented by Mere Failure of Employer to Disclose Facts.
    The mere failure of an employer to disclose that a cause of action exists in favor of an employee is not sufficient to prevent the running of the statute of limitations. There must be something more, some actual artifice to prevent knowledge of the facts; some affirmative act of concealment or some misrepresentation to exclude suspicion and prevent inquiry.
    Action by Robert S. McClenahan, petitioner, to review the award of the State Industrial Commission denying liability of the Oklahoma Railway Company to petitioner for an alleged injury.
    Award of the Industrial Commission affirmed.
    Fred M. Hammer, for petitioner.
    Kent W. Shartel and Ansel T. Blake, for respondents.
   CLARK, J.

This is an original action filed in this court by petitioner to review an award of the State Industrial Commission entered on the 7th day of June, 1926, wherein Robert S. McClenahan, petitioner, was claimant, and the Oklahoma Railway Company was respondent.

Said order and award dismissed the claim of the petitioner for want of jurisdiction for the reason same was not .filed with the State Industrial Commission for more than one year after the date of the alleged injury.

Plaintiff in error assigns 12 separate assignments of error, which may be considered under two headings:

First. Was claim of petitioner barred by tbe statute of limitations.

Second. If barred by tbe statute of limitations, was tbe act of respondent sucb as would prevent tbe statute of limitations running as between tbe petitioner and respondent?

Tbe evidence disclosed that petitioner was in tbe employ of respondent as express agent, and during- tbe latter part of August, 1924, tbe alleged injury occurred. Petitioner worked on with tbe said respondent until October 24, 1924; made some complaint to tbe company of bis injury and was examined by respondent’s doctor, Dr. West. Petitioner testified that after leaving tbe services of respondent be did not work for a little over a month, and then went to work for tbe Alligator Manufacturing Company; that be told Mr. Pugh, bis manager, and Mr. Keyser, tbe foreman, that be was injured and could not do heavy work. After leaving tbe Alligator Manufacturing Company, be went to work for tbe Sun Finance Company as secretary, and did office work. July 9-, 1925, he went to tbe Oklahoma General Hospital, and was operated on for bernia. Dr. Harbinson performed the operation, and Dr. Harbinson wrote Dr. West regarding tbe injury or tbe operation; that he reported bis injury to George W. Struble, claim agent for respondent.

Tbe following questions and answers appear in tbe record:

“Q. You were operated on, then, for hernia? A. Yes. Q. It is your opinion it was caused solely by the accident you received while working for tbe Oklahoma Railway Company? A. It was a mere conclusion.”

At tbe conclusion of tbe testimony of petitioner, respondent asked that tbe cause be dismissed, for the reason the record disclosed that tbe claim was filed with tbe Commission on or about January 27, 1926, and that tbe same was barred by section 7301, C. O. S. 1921, which motion was by tbe Commission sustained, and tbe cause dismissed.

Petitioner offered to prove by witnesses that tbe injury arose out of and in tbe scope of tbe employment; that respondent bad actual notice of tbe injury within the time prescribed by law; that tbe respondent failed to report tbe injury to tbe Industrial Commission; that tbe respondent failed to submit form 3 to tbe employee;. that tbe claim for compensation was filed within one year from tbe date of disability; that tbe injury was not caused by any work done by tbe claimant after leaving the employ of tbe Oklahoma Railway Company. This offer of evidence was overruled and excepted to by respondent.

We are of tbe opinion that this cause comes clearly within section 7301, C. O. S. 1921, which is as follows;

“Tbe right to claim compensation under this act shall be forever barred, unless within one year after the injury, a claim for compensation thereunder- shall be filed with tbe Commission. ”

Tbe record discloses that tbe alleged injury occurred tbe latter part of August, 1924, and tbe claim was filed with tbe State Industrial Commission January 27, 1926, which was more than a year subsequent to the alleged injury.

In Haiselden v. Industrial Board of Illinois, 113 N. E. 877, the Supreme Court of Illinois said:

“Tbe requirement of section 24, of the Workmen’s Compensation Act, 1913, that no proceeding for compensation thereunder shall be maintained unless claim for compensation has been made within six months after tbe accident, etc., is mandatory, and a claim not presented is barred, even though tbe delay in presentation was due to tbe injured man having mistakenly presented tbe claim to the wrong person, thinking him bis employer. ”

In Rubin v. Fisher Body Corporation, 172 N. W. 534, tbe Supreme Court of Michigan, paragraph 1 of tbe syllabus, says:

“An injured servant must unequivocally claim compensation under tbe Workmen’s Compensation Act within tbe period of six months fixed by tbe statute.”

In Good v. City of Omaha, the Supreme Court of Nebraska, 168 N. W. 639, laid down tbe following rule:

“The mere fact that tbe employer has knowledge that tbe employee has received an injury will not dispense with tbe necessity of tbe claimant making bis claim for compensation, as provided by section 3674, Rev. St. Neb. 1913.”

We are therefore of tbe opinion that petitioner’s claim was barred by section 7301, supra.

It is next contended by petitioner that tbe evidence introduced and offered shows that tbe Oklahoma Railway Company, respondent, bad neglected and violated a legal duty which they owed to petitioner and that they bad deceived petitioner as to bis rights, and thereby prevented petitioner from asserting said rights, and that respondent was guilty of fraud in so deceiving him and preventing petitioner from asserting his rights, and this act on the part of respondent would toll the statute of limitations, and that said statute would not apply in the case at bar.

Plaintiff in error cites the case of Leroy E. Waugh v. Guthrie Gas, Light, Fuel & Improvement Co., 37 Okla. 239, 131 Pac. 174. This case is distinguished from the case at bar in this: In the Waugh Case, supra, the plaintiff occupied a building, and the gas company had a gas line or pipe line in the alley at the rear of the building, and permitted the gas to escape and accumulate under the floor of Waugh’s building. An explosion occurred by reason thereof. Waugh was injured. The gas company knew the cause of the explosion, secretly repaired the gas line, and kept this information from the injured party. This court held that such fraudulent concealment constituted an implied exception to the statute of limitations.

•Syllabus paragraphs 2 and 3 in the Waugh Case are as follows:

“2. Fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud.
“3. The mere failure to disclose that a cause of action exists is not sufficient to prevent'the running of the statute. There must be something more; some actual artifice to prevent knowledge of the facts; some affirmative act of concealment or some misrepresentation to exclude suspicion and prevent inquiry.”

In the case at bar, if the plaintiff was injured, he knew of it; he knew the cause of the injury; he knew the extent of the injury better than anyone; in fact, if he was injured, the cause of the injury was never concealed from him by respondent, and his mere failure and neglect to assert his rights by filing an application with the State Industrial Commission for compensation can in no way be charged to the neglect, concealment, or fraud of the respondent. The alleged injury occurred in August, 1924. He was operated on July 9, 1925; discussed then with Dr. Harbinson the question of the liability of respondent for said injury; was fully aware of all of the facts and circumstances surrounding said injury; had full knowledge of his rights, and his failure to assert his claim can in no way be charged to the respondent.

We are therefore of the opinion that tne judgment and award of the Industrial Commission was correct, and should be affirmed.

BRANSON, C. J., MASON, V. O. J., and LESTER, HUNT, RILEY, and HEFNER, JJ., concur.

Note. — See under (1) Workmen’s Compensation Acts — C. J. p. 106, §103; anno. 16 A. L. R. 462; 40 A. L. R. 495.  