Bolton v. Murdock, 6140

• Decision Date: 21 February 1957
• Docket Number: No. 6140,6140
• Citation: 307 P.2d 794,1957 NMSC 19,62 N.M. 211
• Parties: Dock BOLTON, Plaintiff-Appellant, v. Rex MURDOCK, Employer, and Great American Indemnity Company, Insurer, Defendant-Appellees.
• Court: New Mexico Supreme Court

Page 794

307 P.2d 794

62 N.M. 211

Dock BOLTON, Plaintiff-Appellant, v. Rex MURDOCK, Employer, and Great American Indemnity Company Insurer, Defendant-Appellees.

No. 6140.

Supreme Court of New Mexico.

Feb. 21, 1957.

Rehearing Denied March 13, 1957.

Harvey C. Markley, Lovington, Kent Wagonseller, Lubbock, Tex., for appellant.

L. George Schubert, Hobbs, for appellees.

KIKER, Justice.

Claimant brought this action to recover workmen's compensation on account of a claimed injury which he alleged was sustained by him in the course of his employment by defendant while using a sixteen pound maul in digging a drain ditch from a cesspool.

Defendant stated two grounds for defense: first, that claimant served no written notice upon him at any time of the injury which he allegedly sustained; second, that defendant had no actual knowledge at any time that claimant sustained any injury in the course of his employment.

The parties have agreed that the facts necessary to a decision are as stated by appellant in his brief. That statement is as follows: 'On June 7, 1955, he was using a 16-pound maul (sledge Hammer) digging a drain ditch in caliche rock to lead from a cesspool. His foreman was on this job with him. After a day of this work, he suffered pain and soreness in his right arm and shoulder. He administered home remedies that night and returned to work the next day but declined to his foreman to use the maul, stating that he had hurt his shoulder and needed to see a doctor. His foreman thereupon used the maul once and decided to call the job finished. The next day he told defendant Murdock's secretary that he had hurt his shoulder using a maul and asked if the company had a doctor. He was advised to use rubbing alcohol. Plaintiff complains of pain in the right shoulder joint and right arm, rendering him unable to perform productive labor. He was sent to Detroit by his employer the next week and upon his return July 5, was asked by his employer the reason for his return at that time. He replied that he had hurt his shoulder and needed to see a doctor. He was advised to lay in the sun, and return to work when he felt able. He was finally sent to Dr. Terry by the secretary on July 16, 1955. Dr. Terry treated him until August 3 and discharged him August 15, 1955. Treatment consisted of pain capsules, infra-red light and salve. He has received no compensation by reason of this injury. No written notice of injury was made prior to filing suit. Defendants deny actual knowledge of a compensable injury within the pertinent time. Plaintiff's doctor states 5 to 10 per cent permanent disability. One of defendant's doctors does not deny disability, the other does. Lay witness for plaintiff testified that he worked hard prior to this injury and could not afterward.'

All of the facts as just stated were offered in evidence by appellant at the trial. At the close of plaintiff's evidence, defendant moved the court to direct the jury to return a verdict in his favor and stated as basis for his motion the same reasons as those stated for defense.

The court, having considered the facts as above stated, and having considered the case of Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302, 305, sustained the motion and instructed the jury to return a verdict in favor of defendant. This appeal resulted from the judgment entered upon the verdict.

In stating his reasons for sustaining the motion, the trial judge said that there was no evidence that defendant had actual knowledge of any compensable injury sustained by claimant. This included want of knowledge on the part of 'the employer or any superintendent or foreman or other agent in charge of the work in connection with such injury occurred.' Sec....