Ex parte Mt. Carmel Coal Co.

• Decision Date: 17 May 1923
• Docket Number: 6 Div. 888.
• Citation: 209 Ala. 519,96 So. 626
• Parties: EX PARTE MT. CARMEL COAL CO. v. MT. CARMEL COAL CO. MILLER
• Court: Alabama Supreme Court

96 So. 626

209 Ala. 519

EX PARTE MT. CARMEL COAL CO.

MILLER v. MT. CARMEL COAL CO.

6 Div. 888.

Supreme Court of Alabama

May 17, 1923

Certiorari to Circuit Court, Walker County; R. L. Blanton, Judge.

Petition of the Mt. Carmel Coal Company for certiorari to the circuit court of Walker county to review the judgment and finding of the judge of said court in a proceeding by Icy Miller against the Mt. Carmel Coal Company under the Workmen's Compensation Act. Writ denied.

Coleman D. Shepherd, of Jasper, for petitioner.

Leith &amp Powell, of Jasper, opposed.

THOMAS J.

The suit is by the widow of a deceased employee, and the certiorari is that at common law. Ex parte Central Iron &amp Coal Co. (Ala. Sup.) 95 So. 472. It seeks to review the action of the trial court in allowing compensation, under the Workmen's Compensation Law, where death had resulted from the accident. Gen. Acts 1919, p. 206.

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 physician's 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." Gen. Acts 1919, § 19 p. 223.

Of "service and requisites of notice," it is said the same may be made "personally" upon the employer or any agent "upon whom a summons may be served in civil action, or by sending it by registered mail to the employer at the last-known residence or business place thereof within the State"; that a notice "substantially" in the form prescribed will be sufficient; and that "no variation from this form shall be material if the notice is sufficient to advise the employer that a certain employee, by name, received a specified injury in the course of his employment on or about a specified time, at or near a certain place specified." Gen. Acts 1919, § 20, pp. 223, 224; Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 531, 532 (2), 93 So. 425. Due notice having been given within 90 days after the accident which resulted in death, no other or further notice of death is required. 2 Honnold on Workmen's Compensation, §§ 19, 20, p. 1317. This is the liberal construction required of the act to the ends in view. Ex parte Central Iron & Coal Co. (Ala. Sup.) 95 So. 472; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289. It results that the trial judge is correct in the observation that-

"*** If notice of the accident has been given within the 90 days and death results thereafter from the accident, no further notice of death is required. In the present case while no notice is averred as given, it is averred that proof of the accident was made, that $48 compensation was paid by defendant upon or for

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