Sloss-Sheffield Steel Iron Co. v. Keefe , 217 Ala. 409 ( 1928 )

This case has been before this court before, 216 Ala. 379,113 So. 400, when the writ was awarded and the cause reversed and remanded for a failure on the part of the plaintiff to show notice or knowledge of the injury within ninety days as required by the statute. Upon the second trial the trial court found for the plaintiff and found that he had given the superintendent notice.

In this class of cases we have held that the finding of the trial court will not be disturbed when there is evidence which will support the finding, meaning, of course, legal evidence. The trial court found that notice was given to the superintendent, but, as this notice was not in writing, it was not sufficient under sections 7568 and 7569 of the Code of 1923. True, we have held that even when the statute as to notice has not been complied with this will not preclude a recovery if it appears that the defendant had knowledge of the injury and of the substantial facts connected therewith. The knowledge relied upon, however, must be independent of the verbal notice of the injured employee, for to hold that such a notice would suffice to charge the employer with knowledge would emasculate that part of the statute by reading written notice to mean oral notice. American Radiator Co. v. Andino post, p. 424,116 So. 121.

The record failing to show written notice, the question arises: Was there legal evidence sufficient to show such knowledge on the part of the employer as would dispense with the necessity of proving written notice? In the first place, it is insisted that the superintendent, to whom it is claimed the notice was given, was dead at the time of the trial, and, as he occupied a fiduciary position with the defendant company, this evidence was not admissible under section 7721 of the Code. This question we need not decide, for the reason that even if admissible there is no proof that the said superintendent had any knowledge of the facts independent of the notice. In the Andino Case, supra, there was evidence, independent of what the plaintiff told, that the foreman saw him limping while at work, saw his shoe was slit, and saw the toe inflamed and discharging pus. Here the plaintiff only told the superintendent about getting oil in his eye, and there is no proof that he knew otherwise that the eye was injured and the plaintiff continued to discharge his regular duties for nearly three months thereafter.

The plaintiff did testify that he went to see Dr. Colquit, the defendant's physician, who examined his eye and sent him to another doctor; but there is nothing to show that he informed Dr. Colquit when, where or how his eyes were injured, even if this would suffice, which we do not decide.

There was also proof that one Jim Hill, a fellow servant, knew that the plaintiff got oil in his eyes, but he was not such an agent of the defendant as to make it bound by his knowledge.

The writ of certiorari is awarded, and the judgment of the circuit court is reversed and the cause is remanded.

SAYRE, GARDNER, and BOULDIN, JJ., concur.