This is an original proceeding to review an order and award of the State Industrial Commission. On August 15, 1930, the respondent, F.W. Nowlin, applied to Harry Britton, farm boss of petitioner and one Martin, who was the general superintendent for petitioner, for work. Mr. Britton advised respondent that he would talk with the superintendent. Said respondent again reported to Britton, and Britton advised respondent that he had taken the matter up with the general superintendent and for him to report on the 18th for work. It also appears that respondent, for approximately 22 months prior to June, 1930, had been employed as superintendent of petitioner's Seminole oil and gas leases. In June, 1930, respondent was discharged on account of drunkenness, and it was the rule of the company that a man discharged at the Okmulgee office on account of drunkenness could not be employed again. Petitioner contends that Britton permitted respondent to help swab as a driller on all oil well commencing on Monday, August 18, 1930, upon the following conditions: "I told him if I put him to work, I don't think the company would stand for it," and contends that petitioner did not stand for the re-hiring of respondent; that Britton paid out of his own pocket the sum of $12.90 for two days' work performed by respondent on August 18th and 19th, and that petitioner did not agree to and did not reimburse his employer, Britton, for the amount expended by him oil account of said work performed by respondent. Respondent, while working on said well between 4 and 6 p. m. of August 18, in swabbing the well, slipped upon the derrick floor and received an injury to his back. Respondent claims that he told a Mr. Gilliam, the tool dresser, that he had hurt his back, and that later during the day, he told Mr. Britton, the farm boss, in reference to hurting his back, in the presence of Mr. Gilliam.
Respondent continued to work until midnight on the 18th, at which time his "tower" ended. He returned to work at noon on the 19th and worked until about 10 p. m. Mr. Gilliam denies that respondent told him of the injury and denies that on August 18th the respondent reported to Britton of having received any injury on August 18th. Mr. Britton also denies a report of the injury was given him on August 18th. Both Mr. Gilliam and Mr. Britton testified that respondent did not report an alleged injury of August 18th until about 3 or 4 o'clock on the afternoon of August 19th. Mr. Gilliam further testified that he did not see the respondent slip or hurt himself and there was no intimation of any injury either on the 18th or 19th, until after the respondent *Page 112 made his report on the afternoon of the 19th, at which time respondent complained of his back. The respondent did not return to work on the 20th, but testified that he went to the doctor (Dr. Mosier). The doctor's card shows a visit on August 18th and August 21st, and it is admitted that the visit on August 18th is error. The matter was set down for hearing before the Commission, and the Commission, on June 12, 1930, made an order and award, which is in part as follows:
"(1) That the claimant, F.W. Nowlin, sustained an accidental injury arising out of and in the course of his employment with the respondent, W.B. Pine, on August 18, 1930.
"(2) That, as result of said aforementioned accidental injury, claimant has been, since August 18, 1930, and is now, temporarily totally disabled from the performance, of manual labor.
"(3) That claimant is in need of further medical treatment and for said injury.
"(4) That the average wage of claimant at the time of said accident was $200 per month.
"The Commission is of the opinion: By reason of the aforesaid facts, that claimant is entitled to compensation, under the law, from August 19, 1930, to May 22, 1931, or 38 weeks and 5 days beyond the five-day waiting period, at the rate of $18 per week, amounting to. $699, and to continue weekly payments of $18 a week until further ordered by the Commission * * *"
It is contended on behalf of the petitioner as follows:
"1. There is no competent evidence reasonably tending to show that the claimant, F.W. Nowlin, was an employee of the respondent, W.B. Pine, at the time of the alleged injury.
"2. There is no competent evidence reasonably tending to show that the claimant, F.W. Nowlin, received an accidental personal injury while in the employ of respondent, W.B. Pine.
3. There is no competent evidence reasonably tending to show that as the result of the alleged injury the claimant, F.W. Nowlin, has been since August 18, 1930, and is now temporarily totally disabled.
"4. There is no competent evidence reasonably tending to show that the average wage of claimant was $200 per month."
Mr. Britton testified as follows:
"* * * I saw Mr. Martin, we talked it over, so I put him (Nowlin) to work"
— also as follows:
"Q. You have the right to employ or hire? A. Not so much. Q. At that time? A. I could hire then, in case I needed some."
And also, in reference to respondent's complaint about his back hurting him, as follows:
"Q. Did Mr. Nowlin say anything about being injured? A. He complained of his back hurting him. Q. Did he tell you he had been injured? A. I don't remember whether he did or not. Q. Did he, or did you, say anything about him going to a doctor? A. I asked him if he could make out, and he said he thought he could make the tower all right, I told him if he didn't, I have to get somebody to finish it out."
Again:
"Q. You are sure on the 19th he talked to you about his back? A. He was complaining about his back. Q. At that time you didn't go into details about what was wrong? A. I don't know whether I did or not. Q. Mr. Britton _____ A. He said he thought he would get along all right, he complained of his back. Q. What did he tell you was wrong with his back? A. Well, he seemed to complain, about all I could say. Q. You didn't ask him what was wrong? A. No, sir. Q. You didn't ask him if lie got his back injured in any way? A. He mentioned something about slipping a little there, one time, I remember. * * * Q. You do remember now lie told you about slipping on the floor there? A. Yes, sir, he said something about it. Q. Then it was after that he complained about his back? A. At the same time he complained about his back. Q. You are sure he didn't say anything at that time about going to a doctor? A. I am sure he didn't, no, sir."
The record also shows that Mr. Martin testified that he had a talk with Mr. Britton in reference to hiring respondent, and the record shows that thereafter the respondent went to work. Dr. Mosier testified that respondent had been to see him, and that he placed some bandages upon him for a wrenched or strained back. Mr. Gilliam testified that respondent left the job about 10:30, stating that his back was hurting. There is testimony in reference to respondent receiving an injury in a car wreck, but respondent stated that the only injury he received was a small skinned place on his shoulder.
The Commission made a finding of fact that the respondent was an employee of petitioner and that respondent received an accidental personal injury on August 18, 1930, arising out of and in the course of his employment with petitioner. There is evidence in the record reasonably tending to support *Page 113 this finding of fact. The same is binding upon this court.
Counsel for petitioner urge as an assignment of error that there is no competent evidence reasonably tending to show that, as the result of the alleged injury, the respondent has been, since August 18, 1930, and is now temporarily totally disabled.
This court, in the case of Otis Elevator Co. v. Haveley,148 Okla. 82, 296 P. 1106 says:
"Incapacity or disability cannot be found to be total where it appears that the claimant's earning power is not wholly destroyed and that he is still capable of performing remunerative employment. In such a case he is under the obligation of making active efforts to procure such work as he can still perform."
The record shows that respondent, the week following the accident, went to Okmulgee in search of work; that during the latter part of September, 1930, respondent secured some work from Messrs. Harber Nowlin, independent contractors, who were engaged in moving tools, and that respondent commenced October 7 and continued until November 3, 1930, and was engaged as a driller on these wells, and for this work was paid $8 per day, in the performance of this work.
The award for this period of disability is erroneous. The Commission should determine the period of time of the temporary total disability. The cause is remanded for the Commission to determine the period of temporary total disability, if any, of respondent since August 18, 1930, attributable to the original accident.
The award is modified and remanded to the Commission for further proceedings not inconsistent with the views herein expressed.
LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, ANDREWS, and KORNEGAY, JJ., concur. CULLISON and SWINDALL, JJ., dissent.