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Higgins v. D.W.F. Wholesale Florists3/28/2000
accident.
We agree with this analysis.
Furthermore, we note that Davis v. Roadway Exp., Inc., 777 S.W.2d 668, 670 (Mo. App. S.D. 1989), held that " tatutes that impose certain technical requirements for notice should not be strictly enforced where the party seeking enforcement had actual notice and cannot show prejudice as a result of the failure to follow the technical requirements." Id., quoting, Macon-Atlanta State Bank v. Gall, 666 S.W.2d 934, 940 (Mo. App. W.D. 1984) (emphasis added). The issue in Roadway was whether a notice was posted in a sufficiently conspicuous place. The Court stated that the posting of the policy constitutes "only constructive notice," as opposed to the actual notice the employee had based on his knowledge of the policy. Id. at 670 (emphasis added). The Court found that actual notice was sufficient in that situation. Id. See also Macon-Atlanta, 666 S.W.2d at 940 (court found that since the mortgagor "had actual notice for more than the statutory period, . . . and has failed to show any prejudice from the lack of receiving the written notice by registered mail required by Section 443.325(3), the Bank's failure to comply with the notice requirement was not a substantial irregularity requiring the sales be set aside").
Here, as in the above cases, Ms. Higgins did have actual knowledge of this policy prior to the accident. Therefore, even assuming this policy was not timely posted, such a technical violation would not bar application of Section 287.120.6 in light of Ms. Higgins' actual knowledge of the policy and her failure to demonstrate any evidence of prejudice resulting from any failure to strictly adhere to the statute's posting requirement.
For these reasons, we find competent and substantial evidence exists on the record to support a finding that Ms. Higgins' right to compensation has been forfeited in light of the circumstances surrounding her violation of the company's alcohol policy. Furthermore, we find the Commission's decision was not against the overwhelming weight of the evidence on the record as a whole. Accordingly, the decision of the Commission is affirmed.
Separate Opinion: None
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