Scott v. General Equipment Co.
| Decision Date | 23 March 1964 |
| Docket Number | No. 7374,7374 |
| Citation | 74 N.M. 73,1964 NMSC 56,390 P.2d 660 |
| Parties | Charles Phillips SCOTT, Claimant, Plaintiff-Appellant, v. GENERAL EQUIPMENT COMPANY, Employer, and Hardware Mutual Company, Insurer, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
H. O. Robertson, John W. Reynolds, Silver City, for appellant.
LaFel E. Oman, Garnett R. Burks, Jr., Las Cruces, for appellees.
Plaintiff appeals from an order sustaining a motion for summary judgment and dismissing his workmen's compensation action.
It is plaintiff's position that the court erred in granting summary judgment because there were present material issues of fact as to the injury claimed to have been suffered, and as to compliance with Sec. 59-10-13.4, N.M.S.A.1953, providing for written notice of the accident and injury, or waiving it where the employer, his superintendent, foreman or other agent in charge of the work had actual knowledge of the occurrence of the accident. Because the notice question is decisive of this appeal, we discuss it only.
There is no disagreement concerning the rule, many times repeated by us, that disputed issues of material fact may not be decided on motion for summary judgment. Buffington v. Continental Casualty Company, 69 N.M. 365, 367 P.2d 539. However, here there is no contention by plaintiff that any written notice was given. On the contrary, he would come within Sec. 59-10-13.4(B), N.M.S.A.1953, which excuses written notice if the 'employer * * * or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.'
Plaintiff admits that neither the employer, his office manager, nor anybody else in authority was advised by him of the claimed accident and injury until some 13 days or more after its alleged occurrence, and then only in conversation. This is not a compliance with Sec. 59-10-13.4, N.M.S.A.1953, in any sense.
We observed in Buffington v. Continental Casualty Company, supra, that we had never held that in order to have 'actual knowledge,' personal witnessing of an accident by a superintendent, foreman or other agent in charge of work was required. In that case we held that verbally advising the employer on the day following the claimed injury, when considered with the other facts there present, met the requirements of the statute. The oral reporting of an accidental injury on the day following its occurrence, together with the additional facts of Winter v. Roberson...
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...it not being given until nine days after the accident. The employer was not charged with 'actual knowledge' in Scott v. General Equipment Co., 74 N.M. 73, 390 P.2d 660 (1964) since the only circumstance was a verbal notice not given until thirteen days after the Here the verbal notice is th......
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