{ "id": 2802104, "name": "Antonio C. SANCHEZ, Plaintiff-Appellee and Cross-Appellant, v. JAMES H. RHODES & COMPANY and Aetna Insurance Company of Hartford, Connecticut, Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Sanchez v. James H. Rhodes & Co.", "decision_date": "1964-03-30", "docket_number": "No. 7368", "first_page": "112", "last_page": "116", "citations": [ { "type": "official", "cite": "74 N.M. 112" }, { "type": "parallel", "cite": "391 P.2d 336" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "59 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589265 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/59/0328-01" ] }, { "cite": "65 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848176 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0450-01" ] }, { "cite": "73 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321411 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/73/0232-01" ] }, { "cite": "73 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321994 ], "weight": 3, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/73/0470-01" ] }, { "cite": "73 N.M. 502", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320416 ], "weight": 3, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/73/0502-01" ] }, { "cite": "65 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846856 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/65/0214-01" ] }, { "cite": "44 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566833 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/44/0567-01" ] } ], "analysis": { "cardinality": 497, "char_count": 8267, "ocr_confidence": 0.658, "pagerank": { "raw": 7.613063065579143e-08, "percentile": 0.4504007762614732 }, "sha256": "d07e14b298812e026d51aa4b13f74e14b2a27f14bab5c2b33720fc7deb792850", "simhash": "1:f1f257428e691d66", "word_count": 1359 }, "last_updated": "2023-07-14T17:26:44.283414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and CHAVEZ, J., concur." ], "parties": [ "Antonio C. SANCHEZ, Plaintiff-Appellee and Cross-Appellant, v. JAMES H. RHODES & COMPANY and Aetna Insurance Company of Hartford, Connecticut, Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "CARMODY, Justice.\nThe employer and its insurer appeal from a Workmen\u2019s Compensation judgment granting total disability to appellee.\nAlthough appellants attack the judgment on ten separate grounds and appellee has filed a cross-appeal, our determination of one issue is conclusive. This relates to appellants\u2019 attack upon the trial court\u2019s finding of notice of the accident and injuries. This has reference to the notice required by \u00a7 59-10-13.4, N.M.S.A.1953.\nAppellee was employed as a laborer in the employer\u2019s pumice mill, where pumice is ground, crushed, sacked, and loaded into freight cars for transportation. In the process, considerable dust is created and necessitates the wearing of respiratory masks by the employees. The claim for compensation, and upon which the total disability was granted, is based upon two entirely separate bodily conditions, one of which was seborrheic dermatitis, consisting of a rash upon the upper part of the body resulting from the pumice dust contacting the skin principally around, the parts of the face where the respiratory mask fitted; the other condition was pulmonary fibrosis, which is caused by inhaling the pumice dust. .Both of these conditions developed over a period of time, and it is impossible to fix a definite date for the occurrence of an accident causing the injury. The finding of the trial court which is specifically attacked by appellants is as follows:\n\u201cThat the plaintiff gave written notice within 30 days of the injury as required by law to the employer by letter, from Doctor Earl Pace dated October 20, 1960, to Mr. B. C. Parmer, as .defendant employer\u2019s superintendent, and by conversation between the plaintiff and defendant employer\u2019s foreman, Roman Valdez, who saw plaintiff\u2019s skin condition constituting actual knowledge for all injuries.\u201d\nWe will first consider the above finding as it applies to the dermatitis. The letter referred to in the finding had reference only \u25a0to the dermatitis, and there is no question but that it was a notice of this particular injury. The only problem is whether the same was timely. There is also evidence that the foreman observed the rash on the appellee\u2019s face, but the evidence does not indicate that the foreman had any knowledge as to the cause thereof. Ogletree v. Jones, 1940, 44 N.M. 567, 106 P.2d. 302; Copeland v. Black, 1959, 65 N.M. 214, 334 P.2d 1116; Higgins v. Board of Directors of the New Mexico State Hospital, 73 N.M. 502, 389 P.2d 616; Wilson v. Navajo Freight Lines, 73 N.M. 470, 389 P.2d 594; and Daulton v. Laughlin Bros. Drilling Co., 73 N.M. 232, 387 P.2d 336. Thus we must determine whether, by the letter, the 30-day notice of the accident and injury as required by the statute (\u00a7 59-10-13.4, N.M.S.A., 1953) was given.\nWe have held that the period for giving of such notice begins to run when the claimant knows of his injury. Yardman v. Cooper, 1959, 65 N.M. 450, 339 P.2d 473. Unfortunately for the appellee, the record in this case shows that the appellee was required to stop working in May of 1960 and was hospitalized for a week for the same physical condition; shortly thereafter, in June of 1960, appellee sought help from the State Labor Commission in order to secure compensation for his dermatitis. It is therefore evident that \u25a0 appellee knew of his condition and even felt that it was compensable some three to four months before the date of the letter, which the court relied upon as the 30-day notice. This is not in conformity with the statute, and appellee cannot recover for this condition because of his failure to comply with the mandatory words of the statute. See Daulton v. Laughlin Bros. Drilling Co., supra; Higgiiis v. Board of Directors of the New Mexico State Hospital, supra; and Wilson v. Navajo Freight Lines, supra.\nWith respect to the pulmonary fibrosis, admittedly no written notice was ever given. Actually, unless the trial court intended that the last few words of finding No. 13 above set out applied to this condition, there is nothing in the findings at all as to any notice. It was, however, argued that in some way the mentioned finding meant that the notice was given in a conversation with the foreman. This particular conversation consisted of the appellee\u2019s saying he was \u201cfeeling pretty tired\u201d and that he was \u201cfeeling pretty bad from my chest.\u201d It is urged that this conversation imparted knowledge to the employer, because the employer\u2019s foreman should have realized that appellee might have developed a lung condition as two other employees at some time previously had developed pulmonary ailments.\nUnder our decisions, this conversation was not the equivalent of actual knowledge. Ogletree v. Jones, supra. We there said:\n\u201cThis knowledge which the- statute requires means \u2018more than just putting upon inquiry and involves more than knowledge of the mere happening * ;}; * > >f\nIn Ogletree, we also said that the notice must be given or the employ'er must have actual knowledge of the cause of the injury. We do not believe that a casual conversation 'with the foreman should be held to give actual knowledge of what caused appellee\u2019s chest pains. Copeland v. Black, supra; and Higgins v. Board of Directors of the New Mexico State Hospital, No. 7347, supra. Thus appellee\u2019s case must fall, due to lack of notice of 'the pulmonary fibrosis. However, this does not completely end the matter, because the trial court made another finding which must be considered.\nOne of the trial court\u2019s findings specifically related to the pulmonary fibrosis and detailed some of the history thereof. This finding stated in part that the appellee was hospitalized in the Veterans Hospital from June 21, 1961, until July 14, 1961, then returned to the hospital on August 16, 1961, at which time the final diagnosis was made and the true nature of the ailment discovered, this being some time between August 16, 1961, and August 23, 1961. From these evidentiary facts, the court determined that this particular injury was latent. The court also, in this same finding, stated that the claim for compensation was made on August 17, 1961. It is obvious that' if this particular injury was latent, as' found by the court, then different questions arise with respect to notice, although nothing is said in the particular finding, or. any others, as to notice of such latent injury. Nevertheless, if the injury was truly latent, it is readily apparent that the claim was prematurely filed, under our decision in Swallows v. City of Albuquerque, 1955, 59 N.M. 328, 284 P.2d 216. Counsel for appellee, no doubt realizing that a serious question was present if the injury was latent, thereby resulting in prematurity of the filing, stated at the time of oral argument that appellee did not rely upon latency and, instead, strongly maintained that the conversation with the foreman and the surrounding circumstances constituted the required actual notice. As we have said, such conversation was not actual notice of the accident or knowledge of the cause thereof and therefore written notice was required. Thus, if the injury was not latent, as is now claimed, the trial court erred in granting compensation; contrariwise, if the injury was latent, even though now discounted by appellee, the claim was prematurely filed and in such event the trial court also erred.\nAlthough appellants also raise several other serious questions in this appeal, our determination of error on the part of the trial court with respect to notice is determinative, and we need not consider the other points raised. Neither is there any necessity in our considering appellee\u2019s cross-appeal.\nThe judgment of the district court will be reversed, with directions to set the same aside and to order a dismissal of appellee\u2019s claim for compensation.\nIt is so ordered.\nCOMPTON, C. J., and CHAVEZ, J., concur.", "type": "majority", "author": "CARMODY, Justice." } ], "attorneys": [ "Catron & Catron, C. R. McIntosh, Santa Fe, for appellants.", "Mat\u00edas A. Zamora, Alfonso G. Sanchez, John E. Conway, Santa Fe, for appellee." ], "corrections": "", "head_matter": "391 P.2d 336\nAntonio C. SANCHEZ, Plaintiff-Appellee and Cross-Appellant, v. JAMES H. RHODES & COMPANY and Aetna Insurance Company of Hartford, Connecticut, Defendants-Appellants and Cross-Appellees.\nNo. 7368.\nSupreme Court of New Mexico.\nMarch 30, 1964.\nRehearing Denied April 29, 1964.\nCatron & Catron, C. R. McIntosh, Santa Fe, for appellants.\nMat\u00edas A. Zamora, Alfonso G. Sanchez, John E. Conway, Santa Fe, for appellee." }, "file_name": "0112-01", "first_page_order": 164, "last_page_order": 168 }