I find myself unable to concur in the majority opinion.
The record in this case stands uncontradicted in that it establishes the fact that Mr. Bodah sustained a personal injury, by accident arising out of and in the course of his employment, viz., hernia, for which he was subsequently operated, and that as a result of such injury so sustained and the operation made imperative thereby he was totally disabled.
Mr. Bodah's right to recover compensation is defeated, primarily, if I understand the majority opinion correctly, because a majority of the board found that there was lack of notice of the injury to the employer as soon as practicable after its occurrence. Without going into detail, to my mind there was nothing to warrant the board in so finding, either in law or by any disclosure in the record. There is an absolute lack of evidence that the employer was in any way *Page 685 prejudiced by the failure of Mr. Bodah to give notice, conceding that notice was not given, and the burden should properly rest upon the employer to show prejudice by reason of failure to give notice. C. S., sec. 6246, inter alia, provides:
"Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it be shown that the employer, his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by suchdelay or want of notice."
If notice is given, no showing of prejudice by the employer would be necessary. Lack of notice furnishes to the employer the right to show prejudice and thereby to defeat the claim. Whether or not he was prejudiced by lack of notice would rest peculiarly within the knowledge of the employer.
The holding in the majority opinion as to the effect of lack of notice is highly technical and defeats the humane provisions of the workmen's compensation law, the purpose of the law, as declared by the legislature, being to provide sure relief for injured workmen and their families and dependents. It is the settled rule in this state that the workmen's compensation law should be liberally construed with a view to effect its object and to promote justice. (McNeil v. Panhandle Lumber Co.,34 Idaho 773, 203 P. 1068.) As was said in the recent case ofWalker v. Hyde, 43 Idaho 625, 253 P. 1104: "The modern tendency of the decisions . . . . and the spirit of the law, is to award compensation in all cases where a liberal construction of the statute would justify it."
In harmony, therefore, with the principles above stated, where there is absolute failure of prejudice to an employer because of want of notice, and positive proof of the right to recover otherwise, this court should lay down the rule that in such circumstances a recovery should not be denied. The judgment should be reversed.
Petition for rehearing denied. *Page 686