Swift & Co. v. Rolling , 252 Ala. 536 ( 1949 )

Perhaps we did not make clear our view as regards the allegational deficiencies of the complaint.

The finding of the trial court on ample evidence shows that the defendant's superintendent saw and knew of the accident when it occurred and had knowledge of the resulting injury as soon as it manifested itself, and within the ninety-day period. This was sufficient to bring the right of recovery within the principles announced in such cases as Virginia-Carolina Chemical Co. v. Cherry, 233 Ala. 582, 173 So. 86, and Ex parte Stith Coal Co., 213 Ala. 399(2), 104 So. 756. In fact the Cherry case presents a factual situation much the same as here.

Assuming, therefore, that the complaint was lacking in failing to aver knowledge or written notice within the prescriptive period of the statute, it clearly appears that the defendant did have actual knowledge as contemplated by the rule of our cases within the prescribed time, so we do not think the judgment should be reversed under such a situation. Authoritative analogy is furnished in the cases of Southern Ry. Co. v. Dickson, 211 Ala. 481(4), 100 So. 665, and Best Park Amusement Co. v. Rollins, 192 Ala. 534(2), 68 So. 417, Ann.Cas. 1917D, 929.

Application for rehearing overruled and opinion extended.

All the Justices concur except GARDNER, C. J., not sitting.