Ex parte Stith Coal Co.

• Decision Date: 28 May 1925
• Docket Number: 6 Div 319
• Citation: 213 Ala. 399,104 So. 756
• Parties: Ex parte STITH COAL CO. v. STITH COAL CO. GRIMES
• Court: Alabama Supreme Court

104 So. 756

213 Ala. 399

Ex parte STITH COAL CO.

GRIMES v. STITH COAL CO.

6 Div 319

Supreme Court of Alabama

May 28, 1925

Rehearing Denied June 25, 1925

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Petition of the Stith Coal Company for certiorari to the circuit court of Walker county, to review the judgment there rendered in a proceeding under the Workmen's Compensation Act by Giles Grimes against the petitioner. Writ denied; judgment affirmed.

C.R Wiggins, of Jasper, and Percy, Benners & Burr, of Birmingham for appellant.

Ray &amp Cooner, of Jasper, for appellee.

BOULDIN J.

This is a certiorari to review the judgment of the circuit court awarding compensation to an injured employee under the Workmen's Compensation Law (Acts 1919, p. 206).

In the findings of fact by the trial judge, it is said:

"Accordingly, it is the conclusion of the court and of the undersigned judge thereof, first, that plaintiff was injured by an accident arising out of and in the course of his employment; second, that defendant had actual knowledge of the fact of his injury within 90 days of its occurrence, which the court finds to have been on February 22, 1924, and that this actual knowledge dispensed with the necessity for the written notice required by the law. ***"

The finding recites with unusual detail and commendable care the testimony upon which the conclusion is reached that defendant had "actual knowledge" of the injury, etc. This testimony fully warranted such conclusion.

Does actual knowledge of the fact of the injury, within 90 days after its occurrence, dispense with the necessity for the written notice required by the law? This is the controlling question in the case.

The Compensation Law, § 19 (Code, § 7568), requiring written notice of the accident to be given to the employer, concludes: "*** 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 days after the death."

Section 20 (Code, § 7569) prescribes the substance of the notice and manner of service. This requirement of notice is mandatory, and a failure to give it, in a proper case, defeats the claim to compensation. Ex parte Sloss-Sheffield S. & I. Co. (Cook's Case) 212 Ala. 699, 103 So. 920; Ex parte Harper, 210 Ala. 134, 97 So. 140; Ex parte Sloss-Sheffield S. & I. Co., 207 Ala. 531, 93 So. 425.

None of these cases deal with the specific question here presented; namely, whether formal notice is a condition to recovery where it is affirmatively shown that the employer had all the knowledge the notice would have given, and the giving of it become a mere form.

It appears the only reference to this inquiry in our decisions to date is in Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626. That case presented a death claim, and it was declared that, when due notice has been given of the accident, no further notice need be given after death. The court, however, quotes approvingly the holding of the trial judge as follows:

"*** 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 the accident. This under the allegations was paid within the 90 days allowed for notice, and is equivalent to alleging notice, for if the company received the proof and paid the compensation thereon it knew of the accident, and it was not necessary to give notice, and furthermore when they paid the compensation, they waived notice."

This court there cited the case of State ex rel. Crookston Lumber Co. v. Dist. Court, 132 Minn. 251, 156 N.W. 278. By reference to the Minnesota statute (Gen.Laws 1913, p. 684) it appears that section 19 of the Minnesota law, corresponding to our section 19, requires written notice "unless the employer shall have actual knowledge," etc. The Minnesota case above cited rests the decision upon this clause of the statute. See, also, State ex rel. v. Dist. Court, 129 Minn. 423, 152 N.W. 838.

Our section 19 differs from the Minnesota section in the omission of the above clause, as well as other details, and also in the general structure of the section. Section 20 of the two acts, however, is virtually in the same words.

In the light of these matters, it would appear our statute as to written notice admits of no exception. Standing alone, its language imports notice in writing as a condition precedent in all cases. But this section does not...