Sanchez v. Bernalillo County

• Decision Date: 27 May 1953
• Docket Number: No. 5529,5529
• Citation: 57 N.M. 217,257 P.2d 909,1953 NMSC 38
• Parties: SANCHEZ et al. v. BERNALILLO COUNTY et al.
• Court: New Mexico Supreme Court

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.

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 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 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 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 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, 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 recovery of the same and the bringing of any legal proceeding for the recovery thereof shall be and is hereby forever barred. In case death of any workman who would himself have been entitled had such death not occurred, to recover from such employer on account of any such injuries under the terms hereof, claim may be filed therefor on behalf of his dependents as provided in section 8 (Sec. 57-917) hereof. In event of the failure or refusal of any employer to pay any workman entitled thereto any instalment of the compensation to which such workman may be entitled under the terms hereof, such workman shall be entitled to enforce the payment thereof by filing in the office of the clerk of the district court a claim which shall be signed and sworn to by the injured workman or some one on his behalf before any officer authorized to administer oaths, and filed not later than one (1) year after such refusal or failure of the employer so to pay the same. * * *'

Section 95-917, mentioned in the above Section, makes provision for the payment of benefits to dependents in the event injury results in the death of a workman.

Appellant, in support of this contention quotes exensively from Anderson v. Contract Trucking Company, 1944, 48 N.M. 158, 146 P.2d 873, where the court held that the limitation in the statute begins to operate, not from the date of the accident but from the time of the employer's failure to pay compensation for disability when the disability can be ascertained and the duty to pay arises, unless the accident and injury must necessarily be treated as concurring incidents with no latent and undiscernible injury present.

This case differs from the one before us in that in the Anderson case the workman was led to believe that his injury was trivial and he attributed his growing eye weakness to natural causes and advancing age. Suit was filed within the statutory period after the discovery by him of the seriousness of his injury and the court held it to have been filed in time. In the instant case, it was evident that the workmen appreciated the seriousness of his injuries as as early as a few months after the occurrence of the accident but he took none of the steps required of him by the statute to acquaint his employer with the fact that he had sustained a compensable injury, and the only notice given to the employer or its insurance carrier that he claimed a compensable injury was the filing of the suit for compensation. Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302, is authority for the proposition that notice, where required, is a condition precedent to recovery, and is a mandatory requirement upon which the right of action rests, and that this knowledge (of the existence...