Failure of critical proof to support a cognizable claim does not affect the tribunal's jurisdiction over the proceeding before it. See Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937, 938 [1934]. When an award is made on the basis of stipulated facts, the stipulated facts can be considered as evidence.
Neither does the record disclose that petitioner's duties consisted wholly or partly in delivering pipe and other material to or from a place or places where oil well drilling was being done or that his duties were connected with, incident to, and integral part of any business or industry enumerated in and defined as hazardous by the Workmen's Compensation Law. * * *" In Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937, 938, it is stated: "* * * On the other hand, one who packs and delivers merchandise for a wholesale mercantile establishment falls within the provision of the Workmen's Compensation Act even though he also acts as a traveling salesman.
These authorities adhere to the rule that when the jurisdiction of the commission depends upon a question of fact, and the commission in making a previous award had before it competent information to establish the jurisdictional fact, either in the form of an admission of fact, stipulation of fact, or testimony of witnesses, it is deemed to have inquired into its jurisdiction and determined the question of fact upon which the same depends, and thereafter in a proceeding to award further compensation, the jurisdictional fact is not open to inquiry. Rorabaugh-Brown Dry Goods Co. v. Matthews, 162 Okla. 283, 20 P.2d 141; Hardy Sanitarium v. De Hart, 164 Okla. 29, 22 P.2d 379; City of Duncan v. Ray, 164 Okla. 205, 23 P.2d 694; Spivey McGill v. Nixon, 163 Okla. 278, 21 P.2d 1049; Tulsa Terminal Storage Transfer Co. v. Thomas, 162 Okla. 5, 18 P.2d 891; J. B. Herd Hdw. Co. v. Kirby, 160 Okla. 2, 15 P.2d 823; Pinkston Hdw. Co. v. Hart, 172 Okla. 566, 46 P.2d 501; Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937; Hannah v. Highway Commission, 172 Okla. 221, 45 P.2d 53. It is argued that since there was no admission of fact, stipulation of fact, or testimony of witnesses before the Industrial Commission sufficient to sustain the finding of the commission that the business of petitioner was within the coverage of the Compensation Law, the finding was not determinative or conclusive and that the question of jurisdiction might be raised at any subsequent stage of the proceedings. The rule announced in the above-cited cases is applicable only where there is no positive finding as to the essential jurisdictional facts.
Where the injured employee has filed a claim listing an employment declared hazardous by sections 13349 and 13350, O. S. 1931 (85 Okla. St. Ann. secs. 2, 3), in the absence of a denial by the employer, a presumption arises that the work of the employee was hazardous, and the admission of the employer as to the nature of the work may be considered by the State Industrial Commission in making its findings. Maryland Casualty Co. v. Johnson, 134 Okla. 174, 272 P. 833; Cowan v. Watson, 148 Okla. 14, 296 P. 974; Continental Baking Co. v. Campbell, 176 Okla. 218, 55 P.2d 114; Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937; section 13361, O. S. 1931, 85 Okla. St. Ann. sec. 27; Protho v. Nette, 173 Okla. 114, 46 P.2d 942; Enid Cemetery Ass'n v. Grace, 177 Okla. 320, 59 P.2d 284; Dillon v. Dillman, 133 Okla. 273, 272 P. 373. Petitioners allege that there is no competent evidence of temporary total disability.
"In view of rules Nos. 16 and 23, promulgated by the state Industrial Commission, pursuant to section 7318, C. O. S. 1921, providing that if respondents file no denial within ten days after the filing of a claim for compensation, the allegations contained in the claim will be deemed to be admitted, claimant's allegation in his claim that his average daily wage at the time of injury was $6 is sufficient to support an award for $18 per week in the absence of any evidence at the hearing concerning claimant's average earnings, where respondents appear, offer evidence on other questions at the hearing on the claim, but do not deny either by pleading or evidence allegation in the claim." See, also, Cowan v. Watson, 149 Okla. 144 296 P. 974; Sterling Milk Products Co. v. Underwood 167 Okla. 361, 29 P.2d 937. We conclude that the commission made no error in its finding relative to weekly wages of the respondent.
So, in the case now under consideration, the petitioner having advised the commission that it was engaged in a business or industry designated as hazardous by the Workmen's Compensation Law, and that respondent had sustained an accidental injury in the course of his employment, and that his occupation was that of a janitor, was sufficient, in the absence of more, to establish prima facie jurisdiction of the State Industrial Commission and to invoke the presumptions provided under section 13361, O. S. 1931. See, also, Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937. Since the report by the petitioner was sufficient to show prima facie jurisdiction in the Industrial Commission, then, in order for the petitioner to overcome the same and the presumptions accruing by virtue of section 13361, supra, the burden was upon it to offer substantial evidence to the contrary when it urged its objections before the commission at the hearing had on September 6, 1932.
As we have heretofore stated, the petitioner participated in the original hearing of this case before the Industrial Commission and did not appeal from the order and award made with reference to compensation for temporary total disability, but thereafter complied with said order and award and made the payment required, and by his own motion requested the commission to conduct a hearing and make the order of which he now complains. Under these circumstances, we are of the opinion that the rule announced by us in Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937, is applicable, wherein Mr. Justice Bus-by, speaking for this court, said: "Where evidence in original compensation proceedings was sufficient to establish fact on which Industrial Commission's jurisdiction depended, commission taking jurisdiction was deemed to have determined jurisdictional fact, precluding inquiry into jurisdictional question in subsequent proceeding for compensation on ground of change of condition."
— is the correct rule to apply. See, also, Cowan et al. v. Watson et al., 148 Okla. 14, 296 P. 974; Hannah v. Oklahoma State Highway Commission, 172 Okla. 221, 45 P.2d 53; Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937. From a careful examination of the record in this case, we are satisfied that there was sufficient competent evidence before the Commission to sustain the findings in question, and that since it is a question of fact, it is therefore conclusive upon this court.
"It is fundamental that the Commission has jurisdiction only over those business enterprises and industries specified and enumerated in the Workmen's Compensation Act (section 13349, O. S. 1931). Whether a business enterprise or industry comes within the provisions of the act is a question of fact which must be determined affirmatively by the Commission before it is vested with jurisdiction to make an order or enter an award in any case. Such issue of fact may be determined, either by proof, stipulation, or admission of the employer." In the case of Sterling Milk Products Co. v. Underwood, 167 Okla. 361, 29 P.2d 937, all of the decisions on this point were reviewed, and it was therein held: "When the jurisdiction of the State Industrial Commission depends upon a question of fact, and the Commission in making a previous award had before it competent information to establish the jurisdictional fact either in the form of an admission of fact, stipulation of fact, or testimony of witnesses, it is deemed to have inquired into its jurisdiction and determined the question of fact upon which the same depends. Thereafter, in a proceeding to reopen and award further compensation upon a change of condition, the jurisdictional fact is not open to inquiry.
That respondent cannot thereafter deny liability on this ground nor could the Commission again make a subsequent determination of the matter after the award became final. We think what we said in Sterling Milk Products et al. v. Underwood, 167 Okla. 361, 29 P.2d 937, is controlling upon the question raised here. In that case we said::