American Radiator Co. v. Andino

116 So. 121, 217 Ala. 424, 1928 Ala. LEXIS 454

• Court: Supreme Court of Alabama
• Decided: January 26, 1928
• Docket: 6 Div. 998.
• Status: Published

Opinion

BOTJLDIN, J.

Certiorari to review award of compensation under the Workmen’s Compensation Law (Code 1923, § 7534 et seq.).

Paragraphs 1 and 2 of the findings of fact by the trial judge are set out in the report of the case. The verified complaint under section 7578 alleges notice was given as per sections 7568 and 7569 of the Code. This means a notice in writing conforming to the requirements of those sections. No evidence' of such notice was offered. But the answer denied and put in issue the fact of knowledge, the alternative requirement of section 7578, and the evidence and finding of fact was directed to that issue. No question of variance, therefore, arises.

Moreover, evidence being offered on both sides on the question of knowledge of the employer, without objection because of variance, and the matter of variance not being otherwise raised so as to call for amendment in the court below, it cannot be raised here. Such is the rule in ordinary suits at law. Circuit court rule 34. A severer rule will not be applied in summary proceedings of this character.

The evidence presented a clear issue of fact as to whether the injury finally resulting in the loss of plaintiff’s fooi was the result of accident arising out of and in the course of employment as found by the court, or as a result of Raynaud’s disease, admittedly a rather rare disease of the foot.

Besides facts set forth in the court’s finding in support of his conclusion that'the employer had knowledge of the injury, the evidence of the foreman was that he saw plaintiff limping while at work, saw his shoe was slit, and saw the toe inflamed and discharging pus. While he denies plaintiff told him of the accident, it appears from the testimony of the surgeon, Dr. Donald, that it was so reported to him.

Our statute makes a distinction between knowledge and mere notice. The latter, it is expressly declared, must be in writing. So a verbal notice, standing alone, cannot be said to be any evidence of knowledge. So to hold would virtually strike from the statute the requirement of notice in writing.

But it does not follow the accident must occur under the eye of the employer or his alter ego; nor that the injured employee may not be the mover in bringing it to the knowledge of the employer. In view of the liberal construction given such statute, knowledge of the injury will be construed in the sense used in ordinary parlance.

In Northfield v. District Court, 131 Minn. 352, 155 N. W. 103, Ann. Cas. 1917D, 866, it was said:

“Relator’s mayor and street commissioner were informed immediately after the accident that respondent, whom they knew, had received an injury (which they saw) while in the employment of and working for the city. The record presents a case of actual knowledge by the employer of the occurrence of the injury. The knowledge of the mayor is the knowledge of the city. The statute does not require a written notice where the employer has actual knowledge. Section 8213, G. S. 1913; State v. District Court of St. Louis County, 129 Minn. 423, 152 N. W. 838.”

See, also, Crookston Lumber Co. v. Dist. Court, 132 Minn. 251, 156 N. W. 278; Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; In re Murphy, 226 Mass. 60, 115 N. E. 40; Van Treeck v. Traveler’s Ins. Co., 157 Ga. 204, 121 S. E. 215; Allen v. City of Millville, 87 N. J. Law, 356, 95 A. 130; Lachance’s Case, 121 Me. 506, 118 A. 370; 28 R. C. L. p. 826, 1 Schneider, § 543.

Where there is any legal evidence of actual knowledge, the finding of the trial court is conclusive as on other issues.

The evidence of plaintiff in connection with that of the foreman furnished sufficient data to support the finding of the court as to date of the injury, which date saved the action from the bar of the statute of limitations. We see no reason to disturb the judgment in this ease.

Petition denied, and judgment affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.