{ "id": 5335787, "name": "Jose S. ORTIZ, Plaintiff-Appellant, v. ORTIZ & TORRES DRI-WALL COMPANY, Employer, and Ohio Casualty Company, Insurer, Defendants-Appellees", "name_abbreviation": "Ortiz v. Ortiz & Torres Dri-Wall Co.", "decision_date": "1972-01-07", "docket_number": "No. 723", "first_page": "452", "last_page": "457", "citations": [ { "type": "official", "cite": "83 N.M. 452" }, { "type": "parallel", "cite": "493 P.2d 418" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "45 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565158 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/nm/45/0354-01" ] }, { "cite": "74 N.M. 305", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804271 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0305-01" ] }, { "cite": "44 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566936 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0275-01" ] }, { "cite": "77 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802936 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0297-01" ] }, { "cite": "77 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806030 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0408-01" ] }, { "cite": "79 N.M. 711", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740742 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0711-01" ] }, { "cite": "78 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323510 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0440-01" ] }, { "cite": "81 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370182 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0616-01" ] }, { "cite": "74 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801790 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0484-01" ] }, { "cite": "66 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848542 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0126-01" ] }, { "cite": "148 A.L.R. 1002", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1943, "opinion_index": 0 }, { "cite": "47 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562302 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0279-01" ] }, { "cite": "49 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841687 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/nm/49/0253-01" ] }, { "cite": "60 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590366 ], "weight": 3, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0101-01" ] }, { "cite": "81 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363696 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/81/0120-01" ] }, { "cite": "42 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569669 ], "weight": 2, "year": 1937, "opinion_index": 1, "case_paths": [ "/nm/42/0241-01" ] }, { "cite": "70 N. M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/70/0332-01" ] }, { "cite": "77 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804399 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/77/0286-01" ] }, { "cite": "78 N.M. 641", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326504 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/78/0641-01" ] }, { "cite": "76 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502705 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0420-01" ] }, { "cite": "83 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335699 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0327-01" ] }, { "cite": "83 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331320 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0402-01" ] }, { "cite": "83 N.M. 416", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331088 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0416-01" ] }, { "cite": "82 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330878 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/82/0746-01" ] }, { "cite": "82 N.M. 759", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326038 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/82/0759-01" ] }, { "cite": "83 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339743 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/nm/83/0225-01" ] }, { "cite": "82 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326923 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/82/0682-01" ] }, { "cite": "73 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322218 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/73/0050-01" ] }, { "cite": "72 N.M. 268", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2855778 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/72/0268-01" ] }, { "cite": "75 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377688 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/nm/75/0050-01" ] }, { "cite": "73 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322022 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/73/0275-01" ] }, { "cite": "55 N.M. 154", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582912 ], "weight": 2, "year": 1951, "opinion_index": 1, "case_paths": [ "/nm/55/0154-01" ] }, { "cite": "54 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582023 ], "weight": 2, "year": 1950, "opinion_index": 1, "case_paths": [ "/nm/54/0073-01" ] }, { "cite": "81 N.M. 678", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362579 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0678-01" ] }, { "cite": "81 N.M. 602", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364985 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0602-01" ] }, { "cite": "81 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359801 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0291-01" ] }, { "cite": "83 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339252 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0047-01" ] }, { "cite": "81 N.M. 616", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370182 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0616-01" ] }, { "cite": "81 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363696 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0120-01" ] } ], "analysis": { "cardinality": 849, "char_count": 16067, "ocr_confidence": 0.649, "pagerank": { "raw": 1.8655116902082356e-07, "percentile": 0.7254463484164521 }, "sha256": "032f2e7d5df96eb8e675144b66ba04a901e665237189f63a6a3fb1d4d1e7b9fd", "simhash": "1:27cdd425ccad8d7a", "word_count": 2680 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J, concurs.", "COWAN, J, not participating." ], "parties": [ "Jose S. ORTIZ, Plaintiff-Appellant, v. ORTIZ & TORRES DRI-WALL COMPANY, Employer, and Ohio Casualty Company, Insurer, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis workmen\u2019s compensation case presents two issues: (1) the meaning of accident and (2) notice of an accident. Defendants raised both of these issues in their motion to dismiss at the close of plaintiff\u2019s case. The trial court granted the motion, made findings of fact and conclusions of law and entered judgment in favor of defendants. Plaintiff appeals.\nAt oral argument it was suggested that plaintiff\u2019s appeal should not be considered because plaintiff, in his statement of proceedings, did not specifically challenge the findings of fact. See \u00a7 21-2-1(15) (16), N.M.S.A.1953 (Repl.Vol. 4). We agree that there is a technical violation of the rule. Plaintiff, in compliance with the rule, did set forth requested findings' which he contends should have been found and specifically challenged certain of the trial court\u2019s conclusions of law. Also, \u25a0 the wording of the statement of proceedings makes it clear that certain findings were challenged. The only defect is the failure to specifically state that certain findings were challenged. In these circumstances, review of the issues, on the merits, is not to be denied. Section 21-2-1(17), sub-paragraphs 10, 12 and 14, N.M.S.A.1953 (Repl.Vol. 4).\nThe testimony of two Ortiz witnesses will be referred to \u2014 the plaintiff and the Ortiz who, with his partner Torres, constitute the defendant employer.\nThe meaning of \"accident.\"\nPlaintiff, employed by defendant employer as a \u201crocker\u201d was installing sheet rock in a house on March 9, 1970. The trial court found that at about 3 :30 that afternoon \u201c ; ; . plaintiff felt a pain in his back at about the belt-line. At the time plaintiff felt the pain he was not in an accident, and the pain was not caused by trauma or by accident.\u201d This \u201cfinding\u201d clearly holds the \u201cpain in the back\u201d was not an accident because \u201cnot caused by trauma or by accident.\u201d The record shows the sense in which the trial court used the word \u201caccident.\u201d The trial court remarked: \u201c . . . you have to trip or something, you can\u2019t just get a pain in the middle of an ordinary occupation \u00e1nd claim accident. . . ; \u201d\nLyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969) states:\n\u201cIn the sense of the statute, \u2018accidental injury\u2019 or \u2018accident\u2019 is an unlooked for mishap; or untoward event which is not expected or designed. Gilbert v. E. B. Law and Son, Inc., 60 N.M. 101, 287 P. 2d 992 (1955); Aranbula v. Banner Min. Co., 49 N.M. 253, 161 P.2d 867 (1945); Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333, 148 A.L.R. 1002 (1943); Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342 (1941).\n\u201cIt is unnecessary that a workman be subjected to an unusual or extraordinary condition or hazard not usual to his employment for an injury to be an accidental injury under the compensation act. Alspaugh v. Mountain States Mutual Casualty Co., 66 N.M. 126, 343 P.2d 697 (1959); Gilbert v. E. B. Law and Son, Inc., supra; Webb v. New Mexico Pub. Co., supra.\n\u201cBased upon the reasoning of these cases we take it that a malfunction of the body itself, such as a fracture of the disc or tearing a ligament or blood vessel, caused or accelerated by doing work required or expected in employment is an accidental injury within the meaning and intent of the compensation act.\n\u201cLarson in his treatise on the law of workmen\u2019s compensation says : \u2018The \u201cby accident\u201d requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant\u2019s duties. Accordingly, if the strain of claimant\u2019s usual exertions causes collapse from . . . back weakness, the injury is held accidental.\u2019 1A Larson, Workmen\u2019s Compensation Law, \u00a7 38.00 (1967).\u201d\nLyon, supra, shows that under our Workmen\u2019s Compensation law, an accident can be \u201ca malfunction of the body itself.\u201d Two medical witnesses testified to such a malfunction. One testified that plaintiff had \u201can internal derangement of the lumbosacral disk.\u201d The other testified that plaintiff had \u201c . . . a ruptured disk with nerve root pressure, and I think this disk was probably a bulging type and not one that broke out completely, . . . \u201d The first medical witness also testified that such a malfunction could result from lifting, bending or twisting. Plaintiff testified he couldn\u2019t remember exactly what he was doing when he felt the back pain; \u201c . . . but either I was lifting sheet rock or carrying sheet rock or bending down, maybe probably all three of them.\u201d\n\u201c[A] pain in the middle of an ordinary occupation\u201d can be an accident under Lyon, supra. The accident, of course, must \u201carise out of the employment.\u201d See Berry v. J. C. Penney Co., 74 N.M. 484, 394 P.2d 996 (1964). There is evidence which, if believed, would have sustained a finding of an accidental injury arising out of plaintiff\u2019s employment.\nDefendants urge, however, that there is evidence to sustain the finding that plaintiff \u201cwas not in an accident.\u201d We do not consider the question of whether there is evidence to sustain a finding of \u201cno accident\u201d when the word \u201caccident\u201d is given its proper meaning under our Workmen\u2019s Compensation law. See Montoya v. Leavell-Brennand Construction Co., 81 N.M. 616, 471 P.2d 186 (Ct.App.1970). The question is not considered because in finding \u201cno accident\u201d the trial court used an erroneous meaning of \u201caccident.\u201d Compare Marchiondo v. Scheck, 78 N.M. 440, 432 P.2d 405 (1967).\nNotice of an accident.\nThe aspect of \u201cnotice to the employer\u201d involved is notice of an accident. See \u00a7 59-10-13.4(B), N.M.S.A.1953 (Repl.Vol. 9, pt. 1). The trial court found that the employer did not have actual knowledge of the alleged accident of March 9, 1970.\nPlaintiff and Ortiz, the partner, agreed in their testimony that in a conversation on March 19, 1970 plaintiff told the partner about his back pain and when and where the pain came on. Both agreed that the partner told plaintiff to go to a doctor, which plaintiff did on the following day. The partner testified he didn\u2019t know whether plaintiff told him how he hurt his back, \u201c . but I figured how else but hanging rock, ...\u201d\nThe partner also testified that he thought plaintiff was talking about a prior injury to his back. Defendants rely on this testimony to sustain the trial court\u2019s finding of no actual knowledge. We assume, but do not decide, that the testimony of the partner would sustain a finding of no actual knowledge of an accident as of March 19, 1970. This does not dispose of the problem of notice because the issue is whether the defendant employer had actual knowledge of an accident within thirty days of March 9, 1970. Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968).\nIn addition to talking to Ortiz, the partner, plaintiff talked to the other partner, Torres, on either March 20th or March 21st. The details of this conversation are not clear from the record. However, Torres filled out an \u201cEmployer\u2019s First Report of Injury\u201d and Ortiz, the partner, signed this report. The report was delivered to the insurance agent on either March 22 or 23, 1970. This report identifies an accident and an injury on March 9, 1970.\nDefendants recognize that the report, filled out by one partner and signed by the other partner, together with the evidence of plaintiff\u2019s conversation with each of the partners, would be sufficient to sustain a finding that defendants had actual knowledge of the alleged accident. Geeslin v. Goodno, Inc, 77 N.M. 408, 423 P.2d 603 (1967); Waymire v. Signal Oil Field Service, Inc, 77 N.M. 297, 422 P.2d 34 (1966). They claim, however, that this evidence does not compel a finding of \u201cactual knowledge;\u201d that this evidence is to be considered with all other evidence going to the employer\u2019s actual knowledge.\nWe, of course, are required to view the evidence in the light most favorable to support the trial court\u2019s finding of no actual knowledge. The question is: what evidence are we to view? Ortiz, the partner, understood that plaintiff was referring to a prior injury in their conversation of March 19th. We have assumed that the employer cannot be charged with actual knowledge of the accident as a result of this conversation. Subsequently, however, there is the conversation with Torres and the report in which both partners participated.\nThis evidence (the Torres conversation and the report) is uncontradicted. Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940) sets forth situations where a trial court can disregard uncontradicted testimony. The Medler rule has been followed in numerous New Mexico decisions. None of the Medler situations apply in this case on the question of actual knowledge of the alleged accident. Thus, the trial court could not properly disregard the uncontradicted evidence that the employer had actual knowledge of the alleged accident by March 23rd. The trial court\u2019s finding to the contrary is erroneous\nPlaintiff, having been successful in this appeal, asks for an award of attorney fees. The request is premature. Attorney fees are awarded only when there has been an award of compensation and at this point there is no such award. Section 59-10-23(D), N.M.S.A.1953 (Repl.Vol. 9, pt. 1); Keilman v. Dar Tile Company, 74 N.M. 305, 393 P.2d 332 (1964).\nHaving determined that the trial court used an erroneous definition of \u201caccident\u201d and erroneously disregarded the uncontradicted evidence that the employer had actual knowledge of the alleged accident, the judgment in favor of defendants is reversed. The erroneous judgment having been entered prior to the presentation of defendants\u2019 case, the cause is remanded for a new trial.\nIt is so ordered.\nHENDLEY, J, concurs.\nCOWAN, J, not participating.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent here solely to illustrate how confusion, contradiction and conflict intermingle in New Mexico decisions. Rules of law and judicial decisions are often interpreted by appellate judges, including the writer of this opinion, to serve a personal sense of justice. That is why conflicting opinions parade down through New Mexico judicial history.\nIn this case, the plaintiff did not challenge the trial court\u2019s findings pursuant to \u00a721-2-1(15) (16), N.M.S.A.1953 (Repl.Vol. 4). This rule reads in part:\nIf any finding is challenged, it mus\u00ed be so indicated by a parenthetical note referring to the appropriate numbered point in the argument. [Emphasis added.]\nThis rule became effective on and after April 15, 1966. Before and after that date, courts of review have continuously held that unchallenged findings were deemed true and controlling. They become the facts of the case for purpose of review. Anderson v. Jenkins Construction Company, 83 N.M. 47, 487 P.2d 1352 (Ct.App.1971); Trinidad Industrial Bank v. Romero, 81 N.M. 291, 466 P.2d 568 (1970); Ed. Black\u2019s Chevrolet Center, Inc. v. Melichar, 81 N.M. 602, 471 P.2d 172 (1970); Farmers and Stockmens Bank of Clayton v. Morrow, 81 N.M. 678, 472 P.2d 643 (1970); Chavez v. Chavez, 54 N.M. 73, 213 P.2d 438 (1950); Case v. Henry, 55 N.M. 154, 228 P.2d 433 (1951); Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852 (1963). For workmen\u2019s compensation cases, see McAfoos v. Borden Implement Co., 75 N.M. 50, 400 P.2d 470 (1965); Scott v. Homestake-Sapin, 72 N.M. 268, 383 P.2d 239 (1963); Kerr v. Akard Brothers Trucking Company, 73 N.M. 50, 385 P.2d 570 (1963). Many more cases can be cited. See New Mexico Digest, Appeal and Error, \u00a7 219(2). From at least 1915 through 1971, this rule has been a thorn in the side of attorneys who have not studied trial and appellate procedure. Now, this thorn can be avoided by pleading for justice under Rule 17(10) (12) and (14) mentioned in the majority opinion.\nRule 17(10) provides that this court shall disregard any error or defect in the proceedings \u201cwhich shall not affect the substantial rights of the adverse party, and no judgment shall he reversed or affected by reason of such error or defect.\u201d [Emphasis added.] The majority opinion relies on this rule and then violates it\nRule 17(12) and (14) fall in the same category. I would not dissent if the Supreme Court would amend its rules of appellate procedure and overrule the past. Plain and obvious errors or mistakes should be noticed if not called to the attention of the trial or appellate court so that each case can be decided on the merits.\nThis court during 1971 refused to follow this adventure in other types of cases which required some of my dissenting opinions. For example, see State v. Mares, 82 N.M. 682, 486 P.2d 618 (Ct.App.1971), reversed, Mares v. State, 83 N.M. 225, 490 P.2d 667 (1971); Pavlos v. Albuquerque National Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971); Saiz v. City of Albuquerque, 82 N.M. 746, 487 P.2d 174 (Ct.App.1971); State v. Atwood, 83 N.M. 416, 492 P.2d 1279 (Ct.App.1971); International Minerals & Chemical Corporation v. Property Appraisal Department, 83 N.M. 402, 492 P.2d 1265 (Ct.App.1971); State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971).\nThe trial court found that plaintiff was not in an accident, and the pain was not caused by trauma or by accident, and plaintiff did not give statutory notice of any accident. These unchallenged findings support the trial court\u2019s conclusions that plaintiff was not entitled to any benefits under the Workmen\u2019s Compensation Act.\nThe Meaning of \"Accident.\u201d\nThe majority opinion states that the trial court used an erroneous definition of \u201caccident.\u201d The opinion considers the evidence most favorable to plaintiff instead of defendant. Plaintiff testified that he was working on the floor inside a house and had a little pain. The pain \u201cstayed a little bit and then went away,\u201d and he \u201ckept on working until four-thirty.\u201d That night, plaintiff took a hot bath and the pain went away and he felt fine the next morning and went back to work. He could not remember what he was doing at the time he felt pain and stated he could not remember being involved in an accident on the date the pain started; he was not lifting or bending, and did not have sh\u00e9etrock over his head. In fact, plaintiff stated he was not in any accident when he had his pain.\nThis case does not fall within the bounds of Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). The undisputed facts in Lyon are different from those in the present case. In Lyon, there was an \u201cunlooked for mishap, or untoward event which [was] not expected or designed.\u201d In the present case, there were none. There was evidence of no exertions, no unexpected result of routine performance, no pain caused by some thing of an accidental character, no malfunction of the body itself, caused or accelerated by doing work required or expected in employment.\nTo the contrary, see Montoya v. Leavell-Brennand Construction Company, 81 N.M. 616, 471 P.2d 186 (Ct.App.1970), where Lyon is distinguished; Bell v. Kenneth P. Thompson Co., Inc., 76 N.M. 420, 415 P.2d 546 (1966), where \u201cthe trial court, who saw and heard the plaintiff, could deny full credence to the testimony of plaintiff.\u201d; Jacquez v. McKinney, 78 N.M. 641, 436 P.2d 501 (1968); Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966); Montano v. Saavedra, 70 N. M. 332, 373 P.2d 824 (1962).\nNotice of an Accident.\nIt is not necessary to discuss the facts of notice of an accident to the employer. The majority opinion accepts the evidence most unfavorable to the findings of the trial court. The evidence is not undisputed. \u201c . . . [T]his court will not reverse the lower court unless there is no evidence upon which the court could have based its finding.\u201d Ham v. Ellis, 42 N.M. 241, 76 P.2d 952 (1937); New Mexico Digest, Appeal & Error, \u00a7 1010(1).", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Richard F. LaRoche, Smith, Ransom & Deaton, Albuquerque, for plaintiff-appellant.", "Le Roi Farlow, Daniel C. Lili, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "493 P.2d 418\nJose S. ORTIZ, Plaintiff-Appellant, v. ORTIZ & TORRES DRI-WALL COMPANY, Employer, and Ohio Casualty Company, Insurer, Defendants-Appellees.\nNo. 723.\nCourt of Appeals of New Mexico.\nJan. 7, 1972.\nRichard F. LaRoche, Smith, Ransom & Deaton, Albuquerque, for plaintiff-appellant.\nLe Roi Farlow, Daniel C. Lili, Albuquerque, for defendants-appellees." }, "file_name": "0452-01", "first_page_order": 578, "last_page_order": 583 }