This is an original proceeding in this court to review an award and order of the State Industrial Commission of Oklahoma, in favor of W.T. Green, claimant, and against the state of Oklahoma (Highway Department), and its insurance carrier, the United States Fidelity Guaranty Company, a corporation, petitioners.
It appears from the record herein that claimant, W.T. Green, on December 3 or 4, 1926, while working for the State Highway Commission, running a grader on the highway west of Dewar, Okla., ran the grader into a pipe line which ran along the ground and was thrown from the grader, and claimed that he sustained certain injuries which caused him to be totally disabled. The claimant, Green, filed claims for compensation with the State Industrial Commission, and on April 27, 1928, the Industrial Commission had a hearing upon such claims. Based on the evidence taken at the hearing of April 27, 1928, the Industrial Commission on May 2, 1928, entered its order denying compensation to claimant for the reason that "the disability complained of was not due to an accidental injury arising out of and in the course of his employment with the Highway Department on December 3 or 4, 1926."
No petition for rehearing on said order was filed and no appeal was taken from said order to the Supreme Court within the 30-day period as provided in section 7297, C. O. S. 1921, as amended by S. L. 1929, ch. 30.
Thereafter, claimant filed a motion with the Industrial Commission to reopen the cause and award further compensation. On December 23, 1929, the Commission held a hearing on said motion, and on April 30, 1930, the Commission made and entered its order wherein the Commission found that claimant had sustained an accidental personal injury on the 3rd or 4th day of December, 1926, and further found that the claimant had since the date of the injury been totally. and permanently disabled, and ordered the Highway Department of Oklahoma, *Page 120 or its insurance carrier, to pay the claimant 500 weeks' compensation beginning December 3, 1926.
From this order and award made by the Commission on April 30, 1930, the petitioners appeal to this court.
The first proposition urged by petitioners on this appeal is:
"The Commission had no jurisdiction to reopen the case and award compensation, because the order of May 2, 1928, was final and conclusive."
That is to say, the order and judgment of the Industrial Commission, entered May 2, 1928, denying compensation to claimant for the reason that "the disability complained of was not due to an accidental injury arising out of and in the course of his employment with the Highway Commission on December 3 or 4, 1926," not having been appealed from within the 30-day period prescribed by the statute, became final and conclusive; that the order not having been appealed from is res judicata between the parties and cannot be reopened or inquired into subsequently by the new Commission.
Section 7297, C. O. S. 1921, as amended by S. L. 1929, ch. 30, provides, in part, as follows:
"The award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction between the parties, unless within 30 days after a copy of such award or decision has been sent by said Commission to the parties affected, an action is commenced in the Supreme Court of the state to review such award or decision. * * *"
In Milby-Dow Coal Mining Co. v. State Industrial Commission,133 Okla. 90, 271 P. 237, this court said:
"Under the provision of section 7297, C. O. S. 1921, as amended by section 8, ch. 61, S. L. 1923, an award or decision of the State Industrial Commission becomes final and conclusive upon all questions within its jurisdiction between the parties, unless within 30 days after copy of such award or decision has been sent by the Commission to the parties affected, an action is commenced in the Supreme Court to review such award or decision, and where action is not commenced in this court to review the award or decision within 30 days after a copy of such award or decision has been sent to the parties affected, this court is without jurisdiction to review the award or decision made. Knowles v. Whitehead, 121 Okla. 55,247 P. 653; Buff v. State Industrial Com., 122 Okla. 199,253 P. 493."
In Ward v. Beatrice Creamery Co., 117 Okla. 31, 245 P. 570, claimant, Ward, filed claim for compensation with the State Industrial Commission, alleging that he had received an accidental injury arising out of and in the course of his employment with the creamery company and that the same was compensable under the Workmen's Compensation Law of this state.
The Commission in denying compensation to the claimant in that case held:
"That the claimant did not sustain an accidental injury arising out of and in the course of employment in an industry or employment covered by the Workmen's Compensation Law."
No appeal from that finding and order was taken by claimant within the 30-day period allowed by the statute. Thereafter claimant filed with the Industrial Commission his motion to set aside and vacate the order made by the Commission. The Industrial Commission sustained the motion of claimant to set aside and vacate its former order, and the Supreme Court, in reversing the ruling of the Industrial Commission, said:
"It will be observed that the decision of the Commission on the first hearing was made on the 15th day of June, 1923, after a full hearing; that no appeal was ever taken from this order and no petition filed in this court or action commenced in this court to review said decision by the plaintiff in error; that this action for review is from the final decision of the Commission of May 5, 1925. We are of the opinion that this appeal or action to review the decision of the Industrial Commission comes too late. If the plaintiff in error desired to have this court review the decision of the State Industrial Commission, he should have commenced his action within 30 days after June 15, 1923, when the State Industrial Commission rendered its decision denying him the right to an award of compensation. * * * It is, however, urged that, under section 7325, C. O. S. 1921, as amended by section 13, page 128, Session Laws of Oklahoma, 1923, the jurisdiction of the State Industrial Commission was a continuing one. The first part of said section, above referred to, is identical with section 7325, C. O. S. 1921, and the only amendment contained in the Session Laws of 1923 is a proviso that follows the first part, and is relative to the continuing jurisdiction, which empowers the said Commission to effect a final settlement between the parties upon a proper petition, and, in the same proviso, it is said: 'The same rights of appeal shall exist from the decision rendered under such petition as is provided for appeals in other cases before the Commission.'
"In the last above quotation, it clearly appears that the question of appeal must *Page 121 be determined on a petition for a final settlement between the parties, under section 7297, above quoted. * * *"
"Section 7297 must govern in fixing the time of the right to appeal, and, as heretofore said, that the decision of the Commission, under both sections, became final and conclusive in this case upon the failure of the plaintiff in error to commence his action to review the first decision of the Commission within 30 days after the same was rendered."
It is well settled under the Workmen's Compensation Law of Oklahoma that the only compensation payable thereunder to an employee is compensation for a disability to such employee "resulting from an accidental personal injury sustained by the employee, arising out of and in the course of his employment."
Section 7385, C. O. S. 1921, provides:
"Every employer subject to the provisions of this act shall pay, or provide as required by this act compensation according to the schedules of this article for the disability of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment. * * *"
Under this section, a compensable accidental injury must disclose from its circumstances the existence of two essential elements; it must have resulted "in the course of" employment, and it must also have arisen "out of" the employment; and the absence of either of these essential elements destroys the application thereto of the beneficent provisions of the Compensation Law. Lucky Kidd Mining Co. v. State Industrial Com., 110 Okla. 27, 236 P. 600; Oklahoma-Arkansas Telephone Co. v. Fries, 128 Okla. 295, 262 P. 1062; Indian Territory Illuminating Oil Co. v. Jordan, 140 Okla. 238, 283 P. 240.
The claimant contends that the Industrial Commission had the right to reopen this case and make an award, under section 7296, C. O. S. 1921, which provides:
"Upon its own motion or upon the application of any party in interest on the ground of change in conditions, the Commission may, at any time review any award, and, on such review may make an award ending, disminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this act. * * *"
This statute presupposes that at some time previous the claimant has sustained an accidental injury arising out of and in the course of his employment; an injury such as would bring the case within the provisions of the Workmen's Compensation Law, and which injury (if disability can be proven) would warrant compensation at the hands of the Industrial Commission.
However, unless an injury is held to arise out of and in the course of the employment, it is not compensable under the Workmen's Compensation Act, and the Industrial Commission has no jurisdiction to make an award thereon. Lucky Kidd Mining Co. v. State Industrial Commission, 110 Okla. 27, 236 P. 600.
In view of the holding of the Commission at the original hearing in this case that "the claimant did not sustain an accidental injury arising out of and in the course of his employment," and that the same was noncompensable under the Workmen's Compensation Law, and under the authorities herein cited, if the claimant desired to have this court review the decision of the Commission, he should have commenced his action within 30 days after May 2, 1928, when the Commission made its order finding that claimant did not sustain an accidental injury arising out of and in the course of his employment with petitioner, and having failed to do so, this order of May 2, 1928, under section 7297, C. O. S. 1921, became final and conclusive between the parties, and the Industrial Commission was without jurisdiction thereafter to reopen the case.
The judgment and order of the Industrial Commission is reversed and the cause remanded, with directions to the Industrial Commission to vacate and set aside its order and award of April 30, 1930, and to sustain the objections of petitioners to the jurisdiction of the Commission to reopen this cause, and to enter judgment in accordance with the views herein expressed.
MASON, C. J., LESTER, V. C. J., and RILEY, SWINDALL, and ANDREWS, JJ., concur. HUNT and HEFNER, JJ., absent. CLARK, J., dissents.