{
  "id": 2744768,
  "name": "Arthur GUTIERREZ, Plaintiff-Appellant, v. WELLBORN PAINT MANUFACTURING COMPANY, Employer, and Fireman's Fund Insurance Company, Insurance Carrier, Defendants-Appellees",
  "name_abbreviation": "Gutierrez v. Wellborn Paint Manufacturing Co.",
  "decision_date": "1968-11-27",
  "docket_number": "No. 187",
  "first_page": "676",
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  "last_updated": "2023-07-14T18:21:18.946358+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and OMAN, J., concur."
    ],
    "parties": [
      "Arthur GUTIERREZ, Plaintiff-Appellant, v. WELLBORN PAINT MANUFACTURING COMPANY, Employer, and Fireman\u2019s Fund Insurance Company, Insurance Carrier, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nThis appeal is concerned with the \u201cactual knowledge\u201d which excuses written notice in a workmen\u2019s compensation case. See \u00a7 59-10-13.4(B), N.M.S.A. 1953. The actual knowledge required is knowledge of an accident and knowledge of a compensable injury. Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967); Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App.1968). The trial court found there was \u201cno actual knowledge of a compensable injury\u201d and dismissed plaintiff\u2019s claim; he appeals. The issue is whether there is substantial evidence to support the finding. If the challenged finding has substantial support, the judgment should he affirmed. Witt v. Marcum Drilling Company, 73 N.M. 466, 389 P.2d 403 (1964).\nPlaintiff verbally informed his foreman that he had fallen and hurt himself. On the basis of this verbal report, he contends the employer is charged with actual knowledge of the accident and of a compensable injury.\nThe fact that a verbal report has been made is not, in itself, determinative of the question of \u201cactual knowledge\u201d within the meaning of \u00a7 59-10-13.4(B), supra. Scott v. General Equipment Co., 74 N.M. 73, 390 P.2d 660 (1964). All of the circumstances must be considered; verbal notice is only one of the circumstances. See Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966); Baca v. Swift & Co., 74 N.M. 211, 392 P.2d 407 (1964) ; Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962); Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381, 96 A.L.R.2d 933 (1962).\nHere, the date of the accident is uncertain; there is evidence that it happened on December 15th, 16th, 17th, 22nd or 23rd. The trial court made no finding as to the specific date of the accident. Plaintiff continued to work through December 31st when he was laid off for lack of work. There is evidence that plaintiff made his verbal report to the foreman \u201csometime in January.\u201d The unchallenged finding of the trial court does not establish the date of this verbal report; rather, the trial court found that plaintiff made his verbal report \u201cafter he was discharged.\u201d\nWhen the verbal report was made to the foreman, plaintiff was asked if he wanted to go to a doctor; he said that he did not. Plaintiff first sought medical attention in connection with the accident on January 17th; this was after the verbal report to the foreman.\nWe do not know how promptly the verbal notice was given; it was at least eight days and could be more than sixteen days after the accident. When the verbal report was made the offer of medical attention was declined. Plaintiff did not contact the foreman subsequent to his verbal report. It was sometime in the following June before the matter was brought to the employer\u2019s attention.\nAdmittedly, the foregoing reviews the evidence in the light most favorable to support the finding; however, this is the rule to be followed on appellate review. Witt v. Marcum Drilling Company, supra. The circumstances shown by the evidence support the finding that the employer did not have \u201cactual knowledge of a compensable injury\u201d. Accordingly, we cannot say as a matter of law that the trial court erred in so finding.\nThe judgment of dismissal is affirmed. It is so ordered.\nSPIESS, C. J., and OMAN, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "A. T. Montoya, Montoya & Montoya, Albuquerque, for appellant.",
      "David R. Gallagher, Toulouse, Ruud, Gallagher & Walters, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "448 P.2d 477\nArthur GUTIERREZ, Plaintiff-Appellant, v. WELLBORN PAINT MANUFACTURING COMPANY, Employer, and Fireman\u2019s Fund Insurance Company, Insurance Carrier, Defendants-Appellees.\nNo. 187.\nCourt of Appeals of New Mexico.\nNov. 27, 1968.\nA. T. Montoya, Montoya & Montoya, Albuquerque, for appellant.\nDavid R. Gallagher, Toulouse, Ruud, Gallagher & Walters, Albuquerque, for appellees."
  },
  "file_name": "0676-01",
  "first_page_order": 708,
  "last_page_order": 709
}