Poe v. Pate

113 So. 234, 216 Ala. 264, 1927 Ala. LEXIS 139

• Court: Supreme Court of Alabama
• Decided: May 26, 1927
• Docket: 6 Div. 795.
• Status: Published

Opinion

THOMAS, J.

It is shown by the record before us and the bill of exceptions that the injury occurred on March 14, 1926, and not March 24th; that the complaint was not served upon defendants within 90 days from the date of the injury. The sheriff’s return shows service of date of June 16, 1926.

The evidence in the bill of exceptions justifying the finding of the trial court that defendants had no notice or knowledge of the injury as required by law, the burden as to this was upon the petitioner. Ex parte Big Pour Coal Mining Co., 213 Ala. 305, 104 So. 764. Plaintiff testified that he did not make a demand on the defendants for the weekly indemnity, but “did on the insurance people,” and he otherwise stated the facts as follows:

“I did not make a demand directly on the defendants for this nine weeks disability. * * *, I was on tbe job during the two weeks after I was hurt, but I was not able to do regular plumbing work, like I had been doing, during those two weeks,”

This is not evidence that the injury from which petitioner suffered was sustained in the time, place, and manner subjecting him to the provisions of the Compensation Act (Laws 1919, p. 206), or that they had notice thereof. Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756. And the letter addressed to one Waterman by Dabney was not the required notice to defendants of petitioner’s injury. The relations of Dabney and Waterman to the parties are not shown, so also the evidence fails to show the relation of- the Ocean Accident & Guarantee Corporation to the parties. And the evidence of Poster fails to bring to defendants’ attention the fact of the injury of petitioner. The report was not offered in evidence.

The petition and writ for certiorari is denied, and judgment of the circuit court affirmed.

Writ denied; affirmed.

ANDERSON, C. X, and SOMERVILLE and BROWN, JJ., concur.