Gutierrez v. Wellborn Paint Mfg. Co.
| Decision Date | 27 November 1968 |
| Docket Number | No. 187,187 |
| Citation | 1968 NMCA 86,448 P.2d 477,79 N.M. 676 |
| Parties | Arthur GUTIERREZ, Plaintiff-Appellant, v. WELLBORN PAINT MANUFACTURING COMPANY, Employer, and Fireman's Fund Insurance Company, Insurance Carrier, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This appeal is concerned with the 'actual knowledge' which excuses written notice in a workmen's compensation case. See § 59--10--13.4(B), N.M.S.A. 1953. The actual knowledge required is knowledge of an accident and knowledge of a compensable injury. Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967); Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App.1968). The trial court found there was 'no actual knowledge of a compensable injury' and dismissed plaintiff's claim; he appeals. The issue is whether there is substantial evidence to support the finding. If the challenged finding has substantial support, the judgment should be affirmed. Witt v. Marcum Drilling Company, 73 N.M. 466, 389 P.2d 403 (1964).
Plaintiff verbally informed his foreman that he had fallen and hurt himself. On the basis of this verbal report, he contends the employer is charged with actual knowledge of the accident and of a compensable injury. The fact that a verbal report has been made is not, in itself, determinative of the question of 'actual knowledge' within the meaning of § 59--10--13.4(B), supra, Scott v. General Equipment Co., 74 N.M. 73, 390 P.2d 660 (1964). All of the circumstances must be considered; verbal notice is only one of the circumstances. See Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966); Baca v. Swift & Co., 74 N.M. 211, 392 P.2d 407 (1964); Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962); Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381, 96 A.L.R.2d 933 (1962).
Here, the date of the accident is uncertain; there is evidence that it happened on December 15th, 16th, 17th, 22nd or 23rd. The trial court made no finding as to the specific date of the accident. Plaintiff continued to work through December 31st when he was laid off for lack of work. There is evidence that plaintiff made his verbal report to the foreman 'sometime in January.' The unchallenged finding of the trial court does not establish the date of this verbal report; rather, the trial court found that plaintiff made his verbal report 'after he was discharged.'
When the verbal report was made to the foreman, plaintiff was asked if he wanted to go to a doctor; he said that he did not. Plaintiff first sought medical attention in connection with the accident on January 17th; this was after the verbal report to the...
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...the requirement has been satisfied. All of the circumstances of the case must be considered. Gutierrez v. Wellborn Paint Manufacturing Company,79 N.M. 676, 448 P.2d 477 (Ct.App.1968). The record indicates that when appellee returned to appellant's plant on May 2, 1977, he spoke to his super......
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...77 N.M. 100, 419 P.2d 756 (1966). See, Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App.1968); Gutierrez v. Wellborn Paint Manufacturing Company, 79 N.M. 676, 448 P.2d 477 (Ct.App.1968). The employer would have to investigate or make inquiry of the facts and circumstances that surround the ......
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