Legg v. Americold Compressor Co.

• Decision Date: 25 August 1976
• Citation: 336 So.2d 1121
• Parties: Luther LEGG v. AMERICOLD COMPRESSOR COMPANY, a corporation. Civ. 831.
• Court: Alabama Court of Civil Appeals

Page 1121

336 So.2d 1121

Luther LEGG v. AMERICOLD COMPRESSOR COMPANY, a corporation.

Civ. 831.

Court of Civil Appeals of Alabama.

Aug. 25, 1976.

James C. Francis, Decatur, for appellant.

St. John & St. John, Cullman, for appellee.

HOLMES, Judge.

This is a workmen's compensation case. From a judgment for the employer the injured employee appeals.

Title 26, § 294, Code of Ala.1940, provides that every injured employee shall, within five days of the occurrence of the accident, give or cause to be given to the employer written notice of the accident. Failure to give such notice results in forfeiture of the benefits to which the injured employee is otherwise entitled unless such failure falls within one of the statutorily enumerated exceptions.

The principal issue in this case is whether the plaintiff-appellant, Luther Legg, complied with the notice to employer provision of the statute.

The transcript of the evidence before this court reveals the following:

On March 24, 1976, the date of the alleged injury, Luther Legg was employed as a machine operator by the defendant company. On that date, he reported to work for the third shift, which meant that he was to work from 11:00 P.M. until 7:00 A.M. The employee testified that shortly after his shift commenced, while he was attempting to change a part in the machine where he was assigned as operator, he slipped and thereby injured his back. Immediately after the mishap, Legg complained of back pain to another machine operator who recommended that he rest until the pain subsided. Legg worked throughout the remainder of the shift, resting intermittently to obtain relief from the back pain.

On the day following the accident, Legg saw a physician who prescribed medicine and rendered treatment to him for approximately three weeks, during which time he continued to work. Thereafter, on the 22nd or 23rd or April, Legg consulted another physician who diagnosed his injury as a herniated disc. On May 2, surgery was performed to remove the disc, and the operating physician testified that appellant had suffered a ten percent loss of function of the body as a whole as a result of the accident. The appellant's absence from his place of employment resulting from his injury totaled approximately twelve weeks.

The employee testified that he informed his 'lead man' or group leader, Blair Davis, of his injuries on the night of the accident, albeit Davis at the time of trial had no recollection of having received such information. Appellant's only other direct communications with his employer concerning the accident transpired subsequent to the operation on June 4 and June 18, 1976, nearly three months after the alleged injury. On the former date, Legg filed a claim for workmen's compensation benefits through J. D. Yeager, the personnel manager of Americold Compressor Company, defendant-appellee. Legg did not at this time or at any time subsequent thereto indicate that his injuries were work related. Moreover, on the latter date, Legg made a statement to Dwight Cagle, a representative of appellee's insurance carrier, to the effect that he had had no accident during his regular shift on the 24th of March.

Against this background, the trial court found that Americold did not receive notice of injury as contemplated by § 294 of the statute.

As shown by a recitation of the evidence, the appellant did not provide the written notice contemplated by the statute. However, he maintains that his oral communication to Blair Davis provided appellee with actual notice of his injury, thereby excusing his giving written notice.

The law in Alabama is clear that written notice will not be required where it is shown that the employer has actual knowledge of the injury. Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215; B. F. Goodrich Company v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45. Knowledge of the injury may be obtained in various ways. Witnessing of the injury by a supervisory employee has been held sufficient...