The opinion
GIBSON, J.
(dissenting). I think the award should be vacated.
The statutory notice of injury was not given and there is no contention that it could not have been given. The finding of the commission that the respondent was not prejudiced by the-failure to give the statutory notice is not sustained by the weight of the evidence. This is necessary. Gulf Oil Corporation v. Garrison, 183 Okla. 631 , 84 P. 2d 12 . In fact, there is no evidence to support such finding.
Claimant testified that he told his foreman “that job tore me up.” That, without more, will not sustain a finding that the employer had “actual notice of the time, place, nature and cause of the injury”, which we have said is the information the employer must have in order to be charged with ac-. tual notice of an accidental injury-. Tidal Refining Co. v. Ballard, 163 Okla., 259 , 21 P. 2d 1054 .
I have examined all of the evidence and, aside from claimant’s testimony, I can find no evidence of the occurrence of the alleged accident, or of respondent having notice thereof within the 30-day period. And claimant’s testimony fails to establish the fact of such notice. Claimant testified that he informed A. G. Vasseur, his foreman, soon after the accident and that two other employees, Henry Overby (George H. Overbay) and Everett Eads (Emmitt Eads) were present- The effect of his testimony may be gathered from the following:
“Q What did you tell him then, if anything? A I told him I got tore up *194 on that job. About my hernia here, I told him what happened there. Q What did he say then? A He did not give me no answer. Q How do you know he heard you? A' I can’t swear to that.”
To constitute notice, in such situation, it must appear that information was imparted by the statement made. The claimant’s statement that he does not know whether Vasseur heard is tantamount to saying he does not know whether notice was received. There is no evidencé of a fact which, in order' to be relied on, must be established. There is nothing in the testimony of Vasseur, Overbay or Eads to indicate that the information was in fact received. There is nothing in claimant’s testimony to the effect that notice was given to Vasseur under such conditions or circumstances that one might draw the inference that Vasseur had heard or should have heard the statement. Liberality of construction does not require us to say that a statement by claimant made into the wind when the foreman was nearby is notice to the employer of an accident. Vasseur testified that he had no recollection of any such statement as that claimant says he made. Overbay and Eads each testified that he had no recollection of having heard such statement made. In my opinion, that was the way each of said witnesses had of testifying that the claimant made no such statement within his hearing.
Since no written notice of the alleged injury was given, and since there is no evidence that the employer had actual notice thereof and no evidence that the employer has not been prejudiced by claimant’s failure to give the written notice, I think the claim is barred and the award should be vacated and the proceeding dismissed.