Sanchez v. Bernalillo County, 5529

• Citation: 57 N.M. 217, 257 P.2d 909, 1953 NMSC 38
• Case Date: May 27, 1953
• Court: Supreme Court of New Mexico

Page 909

257 P.2d 909 57 N.M. 217 SANCHEZ et al.
v.
BERNALILLO COUNTY et al. No. 5529. Supreme Court of New Mexico. May 27, 1953.

[57 N.M. 218] W. T. O'Sullivan, Albuquerque, for appellants.

Simms, Modrall, Seymour & Simms, James E. Sperling, Albuquerque, for appellees.

BRAND, District Judge.

Benjamin Sanchez filed a claim for workman's compensation against the defendants-appellees, on January 20, 1951, and died two days later, leaving a widow and an infant daughter. The widow remarried before the trial of this matter and, since under the Compensation Act a widow's right to benefits ceases upon her remarriage, we are concerned only with the rights of the infant daughter.

The claim alleged:

'Such injury has caused permanent and total disability resulting from damage to claimant's skull, dura, brain, nerves and cerebral area, and involving insanity, the fact, nature and extent

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whereof as a compensable injury was not known by claimant until less than one (1) year ago.'

A suggestion of claimant's death and motion for survival of the claim in favor of the widow and child was filed, and the defendants-appellees answered and plead, inter alia:

'Further answering said claim for compensation the defendants show to the court that from the face of the claim filed herein, it appears that the injuries complained of and alleged to have been suffered while in the course of claimant's employment, occurred almost five years prior hereto and that any claim for said injury is barred by [57 N.M. 219] limitation under the provisions of the Workmen's Compensation Act of the State of New Mexico.'

The testimony disclosed that in February, 1946, while working as a jailer for the Sheriff of Bernalillo County, Sanchez received several head wounds at the hands of prisoners who staged a jail break. His wounds were dressed and his head bandaged and the bandages renewed for about eight days. He lost no time from work and continued at this employment with the same wages until January, 1949, when he was discharged by the incoming sheriff. He then resumed his previous occupation of cutting lawns and worked at this, with some loss of time due to illness, until the fall of 1950, when he became quite ill. He was sent to a hospital for examination and observation, but it was then too late for him to be benefited by treatment, and his death followed shortly thereafter, and was attributed to atrophy of the brain and high blood pressure. The attending physician stated that, in his opinion, the blows he received on his head nearly five years earlier were a contributing factor to his death.

About two months after the injuries received in the jail break, Sanchez started to lose weight and make complaints, chiefly of headaches. After leaving the sheriff's employ, he was unable to work steadily and complained that he was getting weaker and weaker every day; that he had dizzy spells; that his headaches were constant and severe. He also was afflicted with spells of mental confusion, gradually increasing in intensity, and he at all times attributed his troubles to the wounds which he had received while working as a jailer. The court found that throughout the testimony it appeared that the deceased, Benjamin Sanchez, made complaints about his head, while still working in the jail, and attributed his disability to the damage done to his head. He made no complaint, however, to his employer and no compensation was ever paid, nor did the employer file a report of the injury with the Labor Commissioner.

At the close of the plaintiffs' case, the court directed a verdict for the defendants-appellees, holding that the claim was barred under the Statute of Limitation contained in the Compensation Act, and this appeal challenges the correctness of that action.

Although from the claim it is apparent that plaintiffs intended to rely upon the proposition (in order to avoid the bar of limitations) that the seriousness of the injuries was not apparent and remained latent and undiscovered, this contention was abandoned and is not urged in this appeal, no point being raised as to this in the brief.

Appellants set forth Assignments of Error reading:

'1. The court below erred in directing a verdict in favor of defendants-appellees[57 N.M. 220] at the end of appellants' case.

'2. The court below erred in entering judgment dismissing appellants' claim, and in denying the motion for a new trial'.

and three points relied upon for reversal, as follows:

'Point One.

'NMSA, 1941, Sec. 57-928, tolled any limitations-of-actions bars available to appellees under Sec. 57-913, or,--upon another theory,--appellees' failure to comply with Sec. 57-927 estopped them, by reason of Sec. 57-928, from invoking the bar of Sec. 57-913.

'Point Two.

'Even if the limitations-of-actions bar of the Act be available as a defense in the instant appeal, such bar is

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tolled in favor of the minor daughter of the deceased workmen and has not extinguished her right to the statutory benefits under the Act.

'Point Three.

'The judgment below should be reversed and the proceeding remitted with instructions to set aside the verdict and to grant Margarita Sanchez, as widow, and Mary Louise Sanchez, as minor child, a new trial, with costs to abide the event.'

Point One asserts that defendants' failure to file the notice provided for by the Act with the State Labor Commissioner, prevented the period of limitation, within which a claim must be filed, from commencing to run. The pertinent sections in New Mexico Statutes Annotated, 1941 Comp., are:

'57-927. Require reports to be filed with labor commissioner.--It shall be the duty of every employer of labor in this state subject to the provisions of the Workmen's Compensation Act (Secs. 57-901-57-931) to make a written report to the labor commissioner of all compensable accidental injuries which may occur to any of his employees during the course of their employment. Such reports shall be made within ten (10) days after such accidental injury upon forms to be furnished by the labor commissioner and shall contain such information concerning such accident or injury as may be required by the labor commissioner. (Laws 1937, ch. 92, Sec. 14, p. 231.)

'57-928. Effect of failure to file report.--No claim for compensation under the Workmen's Compensation Act (Secs. 57-901-57-931), as it now provides or as it may hereafter be amended, shall be barred prior to the filing of such report or within thirty (30) days thereafter, provided, however,[57 N.M. 221] that this section shall not be construed to shorten the time now provided for filing such claims with the district court. (Laws 1937, ch. 92, Sec. 15, p. 231.)'

The limitations provisions of the Act are contained in the following sections:

'57-913. * * * In event such employer shall fail or refuse to pay the compensation herein provided to such workman after having received such notice, or, without such notice when no notice is required, it shall be the duty of such workman, insisting upon the payment thereof, to file a claim therefor in the manner and within the time hereinafter provided. In event he shall either fail to give such notice within the time required, or fail to file such claim within the time hereinafter required, his claim for such compensation and all right to the...