Speigner v. McGhee

• Decision Date: 07 May 1975
• Citation: 55 Ala.App. 384,316 So.2d 215
• Parties: In re James E. SPEIGNER v. Robert McGHEE, d/b/a McGhee Electrical Company. Ex parte Robert McGHEE, d/b/a McGhee Electrical Company. Civ. 457.
• Court: Alabama Court of Civil Appeals

Page 215

316 So.2d 215

55 Ala.App. 384

In re James E. SPEIGNER v. Robert McGHEE, d/b/a McGhee Electrical Company Ex parte Robert McGHEE, d/b/a McGhee Electrical Company.

Civ. 457.

Court of Civil Appeals of Alabama.

May 7, 1975.

Rehearing Denied June 4, 1975.

N. T. Braswell, III, Montgomery, for appellant.

B. B. Rowe, Enterprise, for appellee.

BRADLEY, Judge.

James E. Speigner, the plaintiff in the trial court and respondent here, filed his complaint in the Circuit Court of Dale County seeking workmen's compensation benefits for injury to his back allegedly incurred while in the employ of Robert McGhee, d/b/a McGhee Electrical Company, defendant below and petitioner here. After a trial, plaintiff was awarded temporary total benefits for an additional period of time. Defendant seeks review of that judgment in this court by writ of certiorari.

The primary contention of petitioner is that he never had notice of respondent's alleged injury as required by Title 26, Section 294, Code of Alabama 1940, as Recompiled 1958.

Title 26, Section 294, Code of Alabama 1940, as Recompiled 1958, provides as follows:

'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 articles 1 and 2 of this chapter, 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 days after the death.'

Respondent testified that he did not inform petitioner of his injury in writing, but did orally tell him on two occasions he was injured on the job; once, by telephone during the evening of the day he was injured, which he stated was March 19, 1973; second, in a face to face conversation with petitioner on March 23, 1973 when petitioner came to the job site. Petitioner testified that he did not remember either of the two conversations with respondent.

The evidence shows that respondent worked for petitioner as a painter and carpenter and had been working for him about three months. At the time of the alleged injury, petitioner had a painting and repair contract at Ft. Fucker, Alabama. On the day in question, respondent and two other employees were unloading a fifty-five gallon drum full of mineral spirits from the bed of a truck. Respondent was on the ground and the other two employees were in the truck. The drum slipped and respondent tried to catch it and it fell to the ground. He said in the process he was knocked to his knees and he felt a sharp pain in his lower back as if a knife had been stuck in it. He said he went inside a shed and laid down on a stack of lumber for some time. He did not do much work the remainder of the day. Mr. Paul, one of the workmen assisting respondent, testified that respondent commented after the drum fell that he had hurt his back. The other employee, Mr. McVay, testified that he could tell that respondent was hurt. That evening respondent called petitioner at his home in Montgomery and informed him of his injury. There were only three employees working for petitioner on the Ft. Rucker job, with no foreman or supervisor.

On March 23, 1973, which was a Friday, petitioner came to Ft. Rucker to pay his employees for the week's work and respondent again, so he testified, informed petitioner of his injury and asked what he should do about it. Petitioner never did tell him what to do about it.

Mr. Paul testified that on March 23, 1973 in Ft. Rucker he heard respondent report the accident and his injury to petitioner.

In the absence of written notice of an injury incurred on the job, does the notice presented by the factual situation in this case satisfy the requirements of Section 294, Supra? We think it does. It should be noted that the written complaint was filed within three months of the alleged injury but it has been held that this is not the kind of notice envisioned by Section 294. Alabama Marble Co. v. Jones, 217 Ala. 300, 116 So. 147.

A similar question was presented to this court in B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. den., 287 Ala. 726, 253 So.2d 45.

'Assignments of error 10 and 18 are addressed to the failure of notice to appellant, as required by Title 26, Section 294 of the Alabama Code.

'There is no dispute that written notice was not given. The question to be decided then is--did appellant have such actual knowledge of the accident and injury of appellee as to remove the necessity of, or to substitute for the statutory requirement of written notice. The case of Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756, first established that written notice was not required if the employer had actual knowledge of the injury and circumstances out of which it arose. The court stated therein the following:

"* * * The aim of the notice is '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. Code, § 7569.'

"That the notice must be written is for certainty; that it is to be given promptly is to enable the employer to make speedy examination, afford proper treatment, and protect himself against simulated or exaggerated claims.

"If the injury occurs under the eye of the employer, or if all the facts are brought to his knowledge within the time written notice is required, he can suffer no injury; the giving of notice becomes a matter of technical form, a trap for the helpless and unadvised * * *.'

'With the above words in mind, we think any reasonable definition of actual knowledge by appellant of appellee's injury is satisfied by the evidence adduced before the trial court.

'We will briefly enumerate some of the information possessed by appellant. . . .

'The information or knowledge of appellant as of April 10, 1967, was (1) That the company nurse had been informed that appellee after working on Sunday night had suffered ulcers and inflammation of the mouth. . . . (3) That appellee's physician had informed appellant by letter that such ailments were due to allergic reactions to some substance and that substance was probably present at his work site. . . . (6) Acting on the information from the physician and requests by appellee and his union representative, a job change had been given. (7) After working only a few days on the job still in the general vicinity of the suspected source of offending allergens, a new attack occurred, which was promptly reported (though the evidence does not explicitly state, it may be inferred that such report to the company nurse was required of employees unable to report for work). (8) Entry in medical record of appellee by appellant's nurse dated May 5, 1967, that appellee was still out with asthma and allergic ulcers in mouth from disability suffered on April 10, 1967.

'Thus, we have enumerated substantial legal evidence upon which the trial court could have based its finding that appellant had knowledge of the injury of appellee. We need go no further. Actual knowledge sufficient to remove the requirement of giving written notice is a question of fact in each case. Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591; Gadsden Iron Works v. Beasley, (249 Ala. 115, 30 So.2d 10); Gulf States Steel Co. v. Christison, (228 Ala. 622, 154 So. 565). We find no error in the court's finding that appellant had notice of appellee's injury.'

In our recent case of Beatrice Foods Company v. Clemons, 54 Ala.App. 150, 306 So.2d 18, we were again faced with the question of adequate notice to the employer of the alleged accident and injury. We there said:

'The primary issue presented for our consideration is whether the evidence supports the finding of the trial court that there was actual knowledge by the employer of the accident and injury sufficient to remove the requirement of written notice as provided by Title 26, Sec. 294 of the Alabama Code.

'Though the statute requiring written notice to the employer of the occurrence of an accident within 90 days remains in the Code, judicial construction thereof has, to a great extent, abrogated its literal application. . . .

'The finding of fact by the trial court will be accepted by the reviewing court if it is supported by any legal evidence. B. F. Goodrich Co. v. Martin, (47 Ala.App. 244, 253 So.2d 37). The evidence presented by the claimant on the issue of notice was that he fell while alighting from his employer's truck on the night of November 20, 1972; that upon returning to the employer's plant a few hours later on November 21, 1972, he reported orally to his supervisor that he had fallen from the truck while at the weighing station in Huntsville and had hurt his shoulders and neck. The supervisor admitted that claimant reported the fall to him but did not recall that he had stated that he had hurt himself. The supervisor made no report of the accident to his superiors.

'Appellant contends that because claimant failed to inform of the extent of his injury for some nine months thereafter, notice was insufficient in fact and law. We do not agree.

'The testimony of claimant was that he fell from the truck, landing upon his shoulders and neck upon concrete. For several minutes he...