Ogletree v. Jones

• Decision Date: 18 September 1940
• Docket Number: No. 4522.,4522.
• Citation: 106 P.2d 302,44 N.M. 567
• Parties: OGLETREEv.JONES et al.
• Court: New Mexico Supreme Court

44 N.M. 567

106 P.2d 302

OGLETREE

v.JONES et al.

No. 4522.

Supreme Court of New Mexico.

Sept. 18, 1940.Rehearing Denied Oct. 30, 1940.

Appeal from District Court, Lea County; James B. McGhee, Judge.

Suit under the Workmen's Compensation Act, Comp.St.1929, § 156-101 et seq., by John Ogletree, claimant, against J. S. Jones, employer, and the Columbia Casualty Company, a corporation, surety. From judgment for claimant, the employer and surety appeal.

Reversed, with direction.

Where employee who suffered illness diagnosed as “oedema,” caused by gas poisoning, merely stated to employer during casual conversation when employee went for pay check that he “was about knocked out” from gas in his chest and, likewise, after employment ended told employer's alleged foreman that he was “kind of knocked out” but did not say from what, employer had no “actual knowledge” within provision of Workmen's Compensation Act excusing written notice of accident or injury, hence employee could not recover compensation. Laws 1937, c. 92, § 4; Comp.St.1929, § 156-113, as amended by Laws 1937, c. 92, § 7.

John R. Brand, of Hobbs, for appellants.

Vincent M. Vesely, of Lovington, for appellee.

MABRY, Justice.

Appellee, a workman, sued appellant Jones, employer, and the appellant surety company, under the Workmen's Compensation Act, Comp.St.1929, § 156-101 et seq., for compensation for personal injury accidentally sustained while in the employ of Jones, recovered judgment upon the court's finding him temporarily totally disabled, and the employer and the surety company appeal.

Two questions are presented in this appeal: The first one, whether appellee, the claimant, suffered an injury which is compensable under our statute, and the other, whether the employer had actual knowledge or was given notice, of the accident and injury, as required by law.

Appellee was employed by appellant as a water pumper, supplying water for oil drilling operations in a Lea county oil field, and working at his job from November 30, 1938, to January 3, 1939. His duties required that he remain at the well most of the time, night and day, watching the pump and attending to details about its operation. The weather was generally cold and appellee had rather meagerly provided for his comfort and convenience, by fixing up and using a small shack of some 6 by 8 feet, where he must lie down or stoop, when inside, because of the low ceiling. This shack was without windows. Its one door opened out upon an uncovered space where, within some five or eight feet of the said door, there was an open gas heater and cooker maintained for keeping warm the shack and its occupant, and for cooking appellee's food. The shack was known as a “dog house”, doubtless quite appropriately named.

This rather crudely improvised “heater” was constructed by the employer, or at his directions, by attaching what was called a “riser and valve” to the gas fuel line running to the pump, to which appellee then attached a crudely made iron drum filled with stones. This served as the heating and cooking unit for the employee, who “lived” in the near-by “dog house”, while both on and off duty.

It was while living and working under these circumstances that appellee became ill. This was within some 18 or 20 days after beginning his work. His illness almost resulted in his death. The illness or disease was diagnosed as “oedema”, and was what one physician described as a bogging down of the kidneys, heart, and lungs, on account of the heavy load of gas poison entering through the lungs and infecting the tissues and organs of the whole system.

Section 4 of Chapter 92 of the Laws of 1937, the controlling statute here, reads:

“The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

“(a) Where, at the time of the accident, both employer and employee are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

“(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment.

“(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.”

The first point we consider is whether there was notice to the employer or knowledge on his part, of the accident and injury. Our statute, with reference to notice of accidents, provides that the injured workman shall give written notice: “Within thirty days after the occurrence thereof, unless prevented by such injury or other causes beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty days after such accident; provided, that no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with [which] such injury occurred had actual knowledge of the occurrence thereof.”-Sec. 7, Chap. 92, Laws 1937 (156-113 N.M. Comp.Laws 1929).

The statute provides further exceptions to the rule requiring this written notice, where the party is prevented from giving it for certain reasons, not important here. Appellee relies upon none of these exceptions.

The statutes of many states (though not our own) have adopted the liberal policy of excusing notice, not only where there is actual knowledge on the part of the employer or agent in authority, but also where absence of notice has not prejudiced the rights of the employer.

[1][2] We have held that the statute requiring the filing of the claim for compensation within the period fixed, is jurisdictional, a limitation on the right of action, Caton v. Gilliland Oil Co. of New Mexico et al., 33 N.M. 227, 264 P. 946; Taylor v. American Employers' Ins. Co., 35 N.M. 544, 3 P.2d 76; and, also that notice, where required, is likewise a condition precedent to recovery, Maestas v. American Metal Co., 37 N.M. 203, 20 P.2d 924, 927.

It is obvious that the provision therefor found in our statute is a mandatory requirement upon which the right of action rests, and not a mere formality to be lightly put aside. There is much reason behind this requirement that the employer have actual knowledge or that he be given written notice of the accident and injury. He has the right to examine into the facts and circumstances surrounding the alleged accident and question witnesses while memories are unfaded and minds unsoiled by partisanship.

It is also for the protection of the employer, “in order that [he] may consider the claim and either pay it or refuse it.” Maestas case, supra. And, to prevent filing of fictitious claims when lapse of time makes proof of genuineness difficult. Wheeler v. Mo. Pac. Ry. Co., 328 Mo. 888, 42 S.W.2d 579.

[3] Our statute requires actual knowledge on the part of the employer, “or any superintendent or foreman or other agent in charge of the work in connection with [which] such injury occurred,” before written notice is to be dispensed with. Notice in casual conversation is insufficient. Herbert v. L. S., etc., Ry. Co., 200 Mich. 566, 166 N.W. 923. It is not enough for one to say he is injured and even show the injured limb without some showing that notice was given or that the employer had actual knowledge of what caused it. Norman Steam Laundry v. State Industrial Comm., 160 Okl. 107, 16 P.2d 92.

This knowledge which the statute requires means “more than just putting upon inquiry and involves more than knowledge of the mere happening of an accident.” 71 C.J. 992, par. 770(2); Bartlett's Case, 125 Me. 374, 134 A. 163; Bates & Rogers Const. Co. v. Allen, 183 Ky. 815, 210 S.W. 467. “Mere notice to the employer that the employee became sick while at work cannot be considered ‘actual notice of injury’ within the provisions of the act excusing written notice.” 71 C.J. 992, 993, par. 770(3); Van Domelon v. Town of Vanden Broeck, 212 Wis. 22, 249 N.W. 60, 92 A.L.R. 501. And the knowledge which the employer must have to excuse a formal notice is of a compensable injury. Kangas' Case, 282 Mass. 155, 184 N.E. 380. See also Burgi v. Jacob Hoffman Brewing Co., 200 App.Div. 246, 193 N.Y.S. 344; State ex rel. Magelo v. Industrial Accident Board, 102 Mont. 455, 59 P.2d 785; Gumtow v. Kalamazoo Motor Co., 266 Mich. 16, 253 N.W. 198.

We examine the evidence in the light of the rules thus stated and quite uniformly followed, and in a light most favorable to the appellee, the workman, to determine whether or not it can be said there is any substantial evidence showing actual knowledge of the occurrence of the injury on the part of anyone upon whose knowledge appellee might rely.

All of the evidence upon the question of actual knowledge on the part of the employer himself is found in the testimony of appellee, and one Elmer Deese, the field boss and foreman in charge of the work in connection with which such injury occurred.

We take up first the question of whether the employer, appellant Jones, had knowledge of an occurrence or occurrences which appellee could characterize as an accident, resulting in his injury. It is conceded that the employer had no written notice. Any actual knowledge of any accident and injury must be found in a brief conversation which appellant held with appellee when appellee came to get his pay check when the work was completed, or, in the knowledge which Elmer Deese, the foreman, obtained from talking with or observing appellee after he began complaining of sickness.

[4] Appellee testified he went to appellant to get the check due him for his last fifteen days of work, and that upon inquiry as to how he was, answered that he was “about knocked out.” To this answer appellant remarked that “he was too”, and appellee...