Ex parte Harper

• Decision Date: 30 June 1923
• Docket Number: 6 Div. 830.
• Court: Alabama Supreme Court
• Parties: EX PARTE HARPER. v. O'REAR ET AL. HARPER

97 So. 140

210 Ala. 134

EX PARTE HARPER.

HARPER v. O'REAR ET AL.

6 Div. 830.

Supreme Court of Alabama

June 30, 1923

Petition by J. T. Harper for certiorari to the circuit court of Walker county to review the decree of that court in a cause brought under the Workmen's Compensation Act by J. T. Harper against Guy V. and Caine O'Rear, which decree denied the relief sought by petitioner. Writ denied, and decree affirmed.

Leith &amp Powell, of Jasper, for appellant.

Coleman D. Shepherd, of Jasper, for appellees.

SOMERVILLE J.

This is a common-law writ of certiorari to review the decree of the circuit court in a cause brought under the Workmen's Compensation Act. Gen. Acts 1919, pp. 206-239.

The facts set up by the pleading are that defendants, Guy V. and Caine O'Rear, were engaged in operating a coal mine near Carbon Hill, and that petitioner, on August 27, 1921, while performing his duties in and about the mine, wrenched sprained, or strained his back, of which fact he failed to notify defendants for the reason, as stated in the complaint he was informed by defendants' physician that he was suffering from kidney trouble; but that thereafter (in February, 1922), upon having an X-ray made and discovering that his back had been wrenched, sprained, or strained, he did notify defendants thereof, which notice bears date February 27, 1922. Defendants' demurrer was sustained and plaintiff took a nonsuit.

There is but one material question argued by counsel, viz. whether the trial court erred in holding that plaintiff cannot recover for failing to give notice of the alleged injury within 90 days, and this review will be confined to the single matter now in controversy.

The provisions of the act as to notice are:

"Every injured employee or his representative shall within five days after the occurrence of an accident give or cause to be given to the employer written notice of the accident and the employee if he fails to give such notice, shall not be entitled to physicians or medical fees nor any compensation which may have accrued under the terms of this act, unless it can be shown that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, or fraud or deceit, or equal good reason, but no compensation shall be payable unless such written notice is given within ninety days after the occurrence of the accident, or where death results within ninety (90) days after the death." Section 19, Gen. Acts 1919, pp. 206-239.

That plaintiff did not serve defendants with written notice, as required by section 19 of the Workmen's...