Gonzales v. Coe
| Decision Date | 10 December 1954 |
| Docket Number | No. 5816,5816 |
| Citation | 277 P.2d 548,59 N.M. 1,1954 NMSC 122 |
| Parties | Aristeo GONZALES, Claimant, Plaintiff and Appellant, v. Clyde COE, d/b/a C & C Contractors, Employer; Mountain States Mutual Casualty Company, Insurer, Defendants and Appellees. |
| Court | New Mexico Supreme Court |
McAtee & Toulouse, Albuquerque, for appellant.
Simms & Modrall, George T. Harris, Jr., Albuquerque, for appellees.
Claimant sues for workmen's compensation and for an additional 50% as penalty for failure of the employer to provide safety devices. In October 1950, while claimant was engaged in repairing a sewer line, the ditch in which he was working caved in, covering him to the waist. At the same time, he was hit on the right shoulder by a piece of asphalt. Subsequently, in November 1953, he filed a claim for compensation as a result of the shoulder injury. Among the defenses pleaded, appellees asserted the statute of limitations. After issue was joined, appellees took claimant's deposition, following which they moved for a dismissal of the claim with prejudice and from an order granting the motion, claimant appeals. We observe the parties treated the motion as though made at the close of claimant's case and it will be so treated here.
The decisive question is whether claimant suffered a latent injury, if so the injury is compensable; if not, the claim is barred by the provision of Sec. 57-913, 1941 Comp., limiting to one year the time within which claims must be filed.
We find support for the conclusion to be announced from certain definitions of the word 'latent'. Webster's New International Dictionary defines the word as 'not visible or apparent; hidden; dormant.' Black's Law Dictionary defines the word as 'hidden; concealed; that does not appear upon the face of a thing.' 24 Words and Phrases, p. 300 defines the word as "Latent' means not discernible by examination.'
The facts are undisputed and viewing the evidence in its most favorable aspect, we conclude that the claim is barred as the accident and injury were concurring incidents. Immediately following the accident claimant noticed a swelling on his right shoulder where he had been hit by the piece of asphalt which he described as a boil. The accident occurred just before noon and claimant took the remainder of the day off. He returned to work the following morning and has worked regularly since, though not for the same employer. He frankly admits that the injury caused him pain at the time he was hit by the asphalt and that it has continuously caused pain and discomfort in his work at all times since. Consequently, he was charged with notice of his disability at the time of the accident. It was not until October 1953, at a time when claimant took his wife to a doctor for...
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Smith v. Dowell Corp., a Div. of Dow Chemical, USA
...to any issue in this case. None of the cases cited by the majority support such a statement. In Letteau, relying on Gonzales v. Coe, 59 N.M. 1, 277 P.2d 548 (1954), we stated that "the mere fact that a claimant, from a medical standpoint, does not know the full extent of his injury does not......
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Yardman v. Cooper
...a compensable injury of which he did not give notice to the employer. A somewhat similar situation existed in the case of Gonzales v. Coe, 59 N.M. 1, 277 P.2d 548, 549. In that case the ditch in which claimant was working in 1950 caved in covering him to the waist and he was hit by a piece ......
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Long v. Weaver
...at the earliest time it arises. The cases cited by defendants to support this proposition are distinguishable. In Gonzales v. Coe, 59 N.M. 1, 277 P.2d 548 (1954), the decisive issue was whether the claimant knew or should have known of his disability as of the date of his accident. Since hi......
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Armijo v. U.S. Cas. Co.
...other ways. See, Wilson v. New Mexico Lumber & Timber Co., supra; Garcia v. New Mexico State Highway Department, supra; Gonzales v. Coe, 1954, 59 N.M. 1, 277 P.2d 548, and Magee v. Albuquerque Gravel Products Company, 1959, 65 N.M. 314, 336 P.2d 1066. However, an examination of these cases ......