The Commission found:
"We further find that the employer had actual notice of such accident within 30 days thereafter, and although notice thereof was not given to employer as soon as practicable after said accident, the employer was not prejudiced by its failure to receive such notice at an earlier date."
No written notice was served at any time upon the employer as required by the statute, so that the Commission was compelled to find that written notice was not given as soon as practicable.
In affirming the award of the Commission we, of course, had to first find from the evidence when and by whom said written notice should have been given, for until that preliminary question was decided, we could not have determined the question which appellants *Page 488 contend we overlooked, namely, "whether or not there is sufficient evidence in the record to support the finding that the employer was not prejudiced by reason of the failure to report." We held that because of the apparent trivial nature of the injury which the employee suffered, the failure of the employee to serve the written notice before his death could not have been availed of as a defense to the claim; that the practicable time for serving notice did not arrive prior to his death. This, in our opinion, appears as a matter of law, for the evidence adduced by both parties was to the effect that Reeves worked every day from Monday, July 21st, the date of the alleged accident, until Sunday morning, July 27th, during which time he performed his duties in the usual manner, made no complaints whatever of injury, and exhibited no symptoms of injury. The only legitimate inference from this evidence is that if Reeves did sustain an accident, it was not such as called for notice under the statute.
The symptoms of the disease from which Reeves died appeared for the first time on Sunday afternoon, July 27th, and from respondent's evidence, which is not contradicted, Reeves was too ill from that date until the date of his death, August 5th, to attend to his affairs. This evidence is sufficient, prima facie at least, to establish excuse for his failure after July 27th to give the notice, and to shift to the employer the burden of going forward with the evidence to dispute the natural inference arising therefrom. [Schrabauer v. Schneider Engraving Products, Inc., 224 Mo. App. 304, 25 S.W.2d 529.]
In our opinion, when the Commission found that written notice was not served as soon as practicable, it must have meant that respondent had failed to comply with the statute, because she had neglected to serve the notice after the death of her husband. However, if appellants' interpretation of the finding is correct, such finding is erroneous, but the judgment should not be disturbed for that reason. Rather, it should be affirmed on the theory that the award was for the right party.
If the Commission meant to imply that Reeves, by failing to give notice after the disease became manifest, had failed to serve the notice as soon as practicable, the judgment must still be affirmed on the theory that there was sufficient evidence to justify the further finding of the Commission that no prejudice resulted from such failure. The symptoms of the disease which caused Reeves' death appeared for the first time on Sunday afternoon, July 27th, and at that time had reached the stage where the giving of antitetanus serum would not have been effective in saving his life. This appears from the testimony of Dr. Olney A. Ambrose, who, testifying for defendants, stated: "Therapeutic doses of antitoxin after the development of the disease are not effective because tetanus bacillus is a very virulent germ. After the condition has been established in the nervous system, antitoxin does not affect it. The outside limit of time antitoxin is effective as a prophylactic is three or four days after the wound. . . . If *Page 489 a man received a nail wound on July 21st and became ill on July 27th and they starter to use tetanus treatment on the 27th, I do not think the disease could have been controlled. . . . After the spasms have started and the throat symptoms appear, it is too late to administer serum."
Appellants also complain, in their motion for rehearing, that our opinion in the case at bar is in conflict with Conn v. Chestnut Street Realty Co., 235 Mo. App. 309, 133 S.W.2d 1056. In that case the employee, on May 21, 1936, while attempting to raise a window, wrenched her arm between the elbow and wrist. A day or two later a swelling appeared, but disappeared in a few days, when a lump developed, about the size of a marble, which lump grew until January 7, 1937, when it was about the size of an orange. On the latter date, the employee was examined by her physician, who told her that the swelling was a tumor and she ought to have it removed. On July 21, 1937, pain developed in her arm, and she went to the hospital to have the tumor removed. The doctor found the swelling to be a sarcoma, and amputated the arm at the juncture of the middle and upper third of the humerus. On September 8, 1937, claim was filed before the Commission, and after a hearing, the Commission denied the claim on the ground that it was not filed within the time prescribed by Section 3337, Revised Statutes Missouri, 1929 (Mo. St. Ann., sec. 3337, p. 8269). The circuit court affirmed. Upon appeal to this court, claimant contended that since she worked until July 21, 1937, there was no disability and hence no compensable injury until that date, and since the claim was filed within six months of July 21, 1937, it was timely filed. We rejected this contention, and held that "a claim must be filed within six months after it becomes reasonably discoverable and apparent that an injury has resulted from the accident" for which the employee is entitled to benefits under the act, including medical services, and we affirmed the judgment on the theory that the facts in evidence warranted a finding that claimant had sustained such an injury more than six months prior to the filing of the claim.
We believe that the mere recitation of the facts in the Conn case demonstrates the fallacy of appellants' contention. Aside from the fact that a different section of the statute was there involved, it was apparent to the employee shortly after the accident that she had suffered an injury for which she was entitled to benefits under the act, which knowledge was sufficient to start the running of the statute. In the case at bar, it was not apparent to the employee that he had suffered a compensable injury. In fact, it was not until August 4th, the day before Reeves died, that the doctors determined that he was suffering from tetanus. The Conn case is not in conflict with our ruling in the case at bar.
The appellants' motion for rehearing is overruled.
Hughes, P.J., and McCullen, J., concur. *Page 490