Sloss-Sheffield Steel Iron Co. v. Watts , 236 Ala. 636 ( 1938 )

Movant challenges the accuracy of our holding that the defendant had actual knowledge of the accident and injury and which dispensed with the necessity of a written notice. We concede that what was said as to Foster's knowledge was merely arguendo and that he was not intrusted with such superintendency or authority as to make his knowledge binding on the defendant. In the original opinion the knowledge of the defendant was based upon the information obtained by Harper from John Moody, and which was introduced by the defendant. We, however, overlooked the fact that the statement was not dated and the evidence fails to show that Harper obtained knowledge of the accident and injury within the time required. While we have held that the written notice can be dispensed with when actual knowledge of the employer is shown, it is essential that the knowledge must have been acquired within the time required for the written notice. Alabama Marble Co. v. Jones, 217 Ala. 300,116 So. 147; Ex parte Stith Coal Company, 213 Ala. 399,104 So. 756.

The plaintiff was required to aver and prove notice or knowledge. Code, §§ 7578, 7568 and 7569. Alabama Marble Co. v. Jones, supra; Ex parte Stith Coal Co., supra. The general denial of the answer was sufficient to make an issue as to notice or knowledge and to require proof of same by the plaintiff. Ex parte Coleman, 211 Ala. 248, 100 So. 114. Want of notice or knowledge is not such a defense as must be specially pleaded and is unlike the defense dealt with in Southern Cement Co. v. Walthall, 217 Ala. 645, 117 So. 17. True, the defendant's answer does not seem to have been verified as required by Section 7578, but no point was made as to the sufficiency of same.

The plaintiff having failed to prove notice or knowledge within the time required by the statute, and as the bill of exceptions purports to contain all of the evidence, the rehearing is granted, the judgment of affirmance is set aside, the writ is awarded and the judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

BOULDIN, FOSTER, and KNIGHT, JJ., concur.