Paragraph 2 of the syllabus of the majority opinion reads as follows:
"Where, on a hearing before the State Industrial Commission, the Commission finds that 'the disability complained of by claimant is not due to an accidental injury arising out of and in the course of his employment with claimant's employer, and claimant does not commence an action in the Supreme Court to review such award or decision within 30 days as provided by section 7297, C. O. S. 1921, held, such award or decision of the Commission becomes final and conclusive between the parties. Held, further, the State Industrial Commission is without jurisdiction *Page 122 thereafter to reopen said cause under section 7296, C. O. S. 1921, and the Supreme Court is without jurisdiction to review the award or decision so made."
I cannot agree that the record before us in this cause justifies this holding. The holding that this matter had been adjudicated is not supported by the record. The defense of res adjudicata is an affirmative defense which must be pleaded and proved. In this case the common rules of pleading and proof are not strictly followed before the Industrial Commission; however, it was the duty of petitioner to prove a former award and judgment. The burden was on the petitioners to prove that this cause had been adjudicated by the Industrial Commission in their favor. This burden was not met.
The record in this case discloses that on December 3 or 4, 1926, respondent, W.T. Green, an employee of the State Highway Department, while using a road grader and working as a maintenance man on the state highway, struck a submerged or hidden gas line in a ditch, which threw him from the grader: that he was maimed, bruised, and crippled for life; that he received internal injuries requiring several operations; that he received a fracture of his backbone, and that he was at the date of the last hearing of this cause unable to perform manual labor. The United States Fidelity Guaranty Company, petitioner, was insurance carrier. According to the record in this case, respondent is a man without means and a subject of charity.
Mr. Green testified that it was the only accident or injury received by him. Mr. Ice, mail carrier, while driving along the road, saw the accident; saw Mr. Green hurled from the grader, and saw him fall. There is no question about the accident occurring while in the course of his employment.
The purported judgment, as relied on and quoted by the majority opinion, is found at page 59 of the record, and, omitting the caption, is as follows:
"Now, on this 2 day of May, 1928, the State Industrial Commission being regularly in session, this cause comes on to be considered pursuant to hearing held at Okmulgee, Okla., April 27, 1928, to determine liability and extent of disability, at which hearing the claimant appeared in person and by his attorney, A.L. Beckett, respondent and insurance carrier being represented by W.B. Gunnels and J.B. Breckenridge, and the Commission after examining said testimony and all records on file, is of the opinion that the disability complained of is not the result of an accidental injury arising out of and in the course of claimant's employment with the State Highway Department on December 3 or 4, 1926."
This judgment is not signed by anyone. There is no record that a vote was ever taken on it as provided by the statute. It is inadmissible for any purpose and has no probative force as a judgment.
I have been unable to find any case on this point. Apparently no trial court has ever admitted such an instrument as a valid judgment. This court has held in a number of cases from district courts of this state that an unrecorded judgment is invalid.
Section 7315, C. O. S. 1921, is as follows:
"The Commission shall be in continuous session and open for transaction of business during all business hours, of every day excepting Sunday and legal holidays. All sessions shall be open to the public, and may be adjourned upon entry thereof in its records, without further notice. Whenever convenience of parties will be promoted or delay and expense prevented the Commission may hold session anywhere in the state. Every vote and official act of the Commission shall be entered of record, and the record shall contain a record of each case considered and the award, decision or order made with respect thereto, and all voting shall be by the calling of each Commissioner's name by the secretary, and each vote shall be recorded as cast. A majority of the Commission shall constitute a quorum. A vacancy shall not impair the right of the remaining Commissioners to exercise all the powers of the full Commission so long as the majority remains."
This section clearly requires all judgments and orders of the Commission to be recorded and to show each Commissioner voting therefor. There is nothing in this record to show that any member of the State Industrial Commission voted for this judgment.
10 R. C. L. sec. 324, states the rule as follows:
"The record of the judgment must be signed by an officer authorized by law and must have been filed in the proper office in order to make it evidence."
The purpose of the Industrial Law of Oklahoma is to require industry to pay for the loss of man power or the loss of earning capacity. The state of Oklahoma provided insurance for its employees in the Highway Department; paid the premiums that the employees should have the benefit of said insurance when an injury occurs. Technical rules of construction should not be resorted to to reach the result which is to leave the *Page 123 maimed, crippled, and helpless employees without the compensation the state so generously provided for their use and benefit. The Industrial Law should be liberally construed so that its objects and purposes may be attained, that is, to care for the maimed and crippled, and place that burden upon the industry responsible for the loss of earning power and thereby relieve the tax-payers of the care and maintenance of the maimed and crippled.
Even if it should be held that the purported judgment is a valid judgment, under the former holdings of this court (Choctaw Portland Cement Co. v. Lamb, 79 Okla. 109,189 P. 750), the Commission had authority to reopen this cause and grant the respondent, Green, compensation. At page 110 of the above case, the court says:
"Commission found that there had been a change in conditions, and the act provides that the decision of the Commission shall be final as to all questions of fact. It is unnecessary for us to express an opinion on the proposition of law advanced by counsel that a finding of a court or jury, which is without support in the evidence, presents a question of law rather than of fact, for there is some evidence in this record supporting the findings of the Commission that there had been a change in conditions, and this court is not authorized to weigh the evidence upon which that finding is based. Moreover, the jurisdiction of the Commission to modify or change its previous findings or orders is not determined solely by the above-quoted provision, for there is another provision, namely, section 14, art. 4, which provides that the power and jurisdiction of the Commission over each case shall be continuing and that the Commission may, from time to time, make such modifications and changes of its former findings or orders relating thereto as, in its opinion, may be just, including the right to make physical examination as provided by section 9, art. 2, of the act. It is obvious, from the language of this section, that it was the intention of the Legislature that the power and jurisdiction conferred on the Commission by the act should be broad and comprehensive. We will not construe the act to subvert the manifest purpose of the Legislature, as it seems to us that this broad and comprehensive jurisdiction was wisely conferred. since, under the act, the injured employee must file his claim for compensation with the Commission within one year after he is injured, or his claim for compensation under the act is forever barred. Section 17, art. 2, Sess. Laws 1915.
"It is a well-known fact that the nature and probable effect of an injury, in many cases, cannot immediately be determined by the most proficient physicians or surgeons, and we are confident that the Legislature had this fact in mind when it provided in section 14, art. 4, for subsequent physical examinations, and conferred jurisdiction on the Commission to modify or change its former findings or orders. The provision thus serves as a protection both to the employer and employee and enables the Commission to change its findings and orders to effectuate justice where the amount previously awarded was either too large or too small, or where the Commission had previously erred in fixing the compensation through mistake or because of fraud practiced upon it. The facts of this case prove the wisdom of the provision. When the first order was made, the extent of claimant's injury was not determinable by the Commission; when the second order was made the claimant's hand had been amputated, and it appeared to the Commission that the extent of his injury was the loss of his hand, but when the last order was made it appeared to the Commission, from the evidence, that the claimant was more seriously injured, and that he had lost the use of his arm."
Under the provisions of the Oklahoma statutes, as construed by this court on former cases, the award should be affirmed.
Note — See under (1) 28 R. C. L. 802; R. C. L. Perm. Supp. p. 6223; R. C. L. Continuing Perm. Supp. p. 1222.