408 F.2d 10
Mrs. Nina GRIFFIN, Plaintiff-Appellee,
ALUMINUM COMPANY OF AMERICA, Defendant-Appellant.
United States Court of Appeals Sixth Circuit.
March 6, 1969.
J. C. Gamble, Maryville, Tenn., for appellant; M. H. Gamble, Jr., Maryville, Tenn., on brief; Goddard & Gamble, Maryville, Tenn., of counsel.
James H. Hodges, Knoxville, Tenn., for appellee; D. H. Rosier, Jr., Maryville, Tenn., on brief; Hodges, Doughty & Carson, Knoxville, Tenn., of counsel.
Before PHILLIPS, EDWARDS and McCREE, Circuit Judges.
The sole issue posed by this appeal is whether or not appellee failed as a matter of law to give the statutory notice of occupational injury to her employer within 30 days of the date of injury.
The record, however, shows that appellee reported her physical symptoms both to her foreman and to the company doctor on the date of injury, or within three days thereof. The record also shows that appellant company had knowledge from appellee's doctor the next day that she had a herniated disc.
The District Judge who heard this case found:
'Plaintiff's employers knew where she worked and the character of her work. Her foreman knew that she was handling band pullers and turning over aluminum sheets. She gave him and the defendant's first aid department all of the material information she had on the subject. At that time she did not know that the incident had caused her herniated disc troubles.
'In the opinion of the Court, and the Court finds, that the circumstances in this record relieved her of the duty of giving the 30-day written notice of her claimed accident for the reason that she did not know that she had met with an accident.'
The Tennessee Supreme Court has held:
'Where the question of notice is raised by the pleadings the burden of showing notice or reason why same was not given is upon the employee. This statute makes the question of reasonableness of the excuse for failure to give written notice one peculiarly for the trial judge, but the material evidence rule applies to this issue of fact the same as to other issues of fact. Brookside Mills v. Harrison, 158 Tenn. 86, 11 S.W.2d 679; Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208; York v. Federal Chemical Co., 188 Tenn. 63, 216 S.W.2d 725.' Aluminum Company of America v. Rogers, 211 Tenn. 187, 193, 364 S.W.2d 358, 360 (1962).
We believe the facts in this record constitute material evidence which supports the finding of the District Judge on the subject of notice.
The judgment of the District Court is affirmed.