Ogletree v. Jones , 44 N.M. 567 ( 1940 )

The findings and evidence clearly show that the appellee was injured by accident while performing services arising out of and in the course of his employment, and that such injury was proximately caused by such accident. He did not give written notice as the statute requires, which is, "notice in writing of such accident and of such injury to such employer within thirty days after the occurrence thereof." But the statute further provides, "* * * no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with [which] such injury occurred, had actual knowledge of the occurrence thereof."

The question is whether the appellant had actual knowledge of the occurrence of the injury.

The appellee, who had always been in good health, was employed by appellant from November 30 to January 3d to pump water from a well used in connection with the drilling of an oil well. For a place to sleep, the appellant furnished him a "doghouse" four by six feet in size and too low in which to stand erect, with only a small opening on one side through which he crawled into the doghouse to sleep. As it was very cold, he was furnished material with which he constructed an improvised heater, consisting of an oil drum with sheets of iron around and over it. He filled the drum with rocks and to it appellant ran a gas pipe "and fixed a flame" to heat the rocks in the drum which was used to keep him warm and for cooking his meals. A hole was cut in the top of the drum, through which fumes from raw gas escaped and passed into the doghouse. The appellant placed the doghouse within three feet of this death trap, with the door facing it. The appellee was in the doghouse, or sitting in the door, practically all the time. The appellee testified that: "I worked along for 18 or 20 days and I began to get knocked out in my chest. I did not know what was the matter. A friend came along and said ``That is gas that is killing you.' * * * I went ahead and the first thing I knew I was almost knocked out. I got out to crank the engine and gasped like I had run a mile. * * * When I got through with the job the third of January I was almost completely knocked out." When the appellee went to get his check, at the conclusion of his work, he told the appellant that he was badly knocked out "from the gas on the job," and that he could not breathe because of the gas on his chest.

Deese, who employed him, and who inspected the work each day, testified, in substance, that appellee told him that his illness was caused by the gas at the well. He also testified that when he (appellee) finished, "he was in very bad shape."

By the first of February his condition was desperate and he was placed in a hospital for treatment.

Appellant had actual knowledge that the improvised heater had been placed within three feet of the door of the doghouse where appellee had to stay to keep warm; that it was heated by a flame burning raw sulphur gas in the oil drum, and that the poisonous fumes escaped through the top of the drum. When appellee went for his check he was a very sick man, and from descriptions of him, appellant had actual knowledge from his appearance of that fact; likewise he must have known or believed, from appellee's appearance when he was employed, that he was then in good physical condition.

The only fact he did not know with absolute certainty was that the gas caused appellee's injury. But I think that appellant had sufficient knowledge of that fact. He knew of the proximity of the heater to the doghouse, and of the burning of raw sulphur gas in it, which threw off deadly sulphur dioxide fumes. Knowing these facts, and giving him credit with having common sense, he knew as a necessary inference that appellee was poisoned from the gas emitted from the improvised heater, for the making of which, he furnished the material. The suggestion from appellee, that "the gas on the job" had poisoned him, must have awakened appellant to a realization of that fact, as his physical condition and the other facts stated, were actually known to appellant, and the inference that the gas was the cause of appellee's injury was the only reasonable one. It was the nearest to actual knowledge that he could have; as our experience shows the lack of dependability of medical testimony in many of such cases. The trial judge is usually confronted with diametrically opposed opinions, given by experts of the medical profession (as in this case); when it would seem that such an injury as that appellee undeniably suffered, could be determined with reasonable certainty.

Appellant had much more definite knowledge of the injury than the employer had in Zurich, etc., Co. v. Industrial Comm.,203 Wis. 135, 233 N.W. 772, 775. The Wisconsin statute regarding notice is substantially the same as that of New Mexico. An employee who had worked several years in a dusty atmosphere became disabled by an ailment which the physicians diagnosed as chronic bronchitis, and was advised to cease work in the dusty atmosphere. The court said:

"When the deceased had reached a point where he felt he could no longer continue his employment in the chipping room, he notified his employer and asked for other work which was given to him. The employer must have known that the change was on account of something connected with work in the chipping room that did not obtain in the outside employment. In one, he was exposed to dust; in the other, he was not. The change resulted in a wage loss of $4.20 per week, which must have indicated that the reason for the change was an imperative one. While the employee did not have notice under the Workmen's Compensation Act in mind, the employer nevertheless was made aware of all the essential facts and was not misled.

"While the notice is far from satisfactory and was informal, we are inclined to the view that the evidence was sufficient to sustain the finding of the commission that the employer, under the particular circumstances of this case, had ``actual notice' within the meaning of the statute."

The following applicable references are copied from Cooper v. Independent, etc., Co., 52 Idaho, 747, 19 P.2d 1057, 1058, in which it was held that the employer had actual knowledge of the injury from a conversation not intended as notice of it:

"In Walkden's Case, 237 Mass. 115, 129 N.E. 396, 397, it was said: ``It is settled by Brown's Case, 228 Mass. 31, 37,116 N.E. 897, and Murphy's Case, 226 Mass. 60, 115 N.E. 40, that because knowledge on the part of the employer is a substitute for the written notice the employer must have knowledge within the time when the written notice should have been given. The word "knowledge" is used in the statute in its ordinary sense as meaning actual knowledge, but not absolute certainty. While notice of what has happened is not actual knowledge that the employee has been injured, it is such information as men usually act upon in ordinary human affairs. "Intelligible information of a fact, either verbally or in writing, and coming from a source which a party ought to give heed to, is generally considered as notice of it, except in cases where particular forms are necessary." George v. Kent, 7 Allen (Mass.) 16, 18.'

"Also it was said in Allen v. City of Millville,87 N.J. Law 356, 95 A. 130, 131: ``The next question is whether Kates had actual knowledge. He did not in the sense that he saw the injury and knew of it first hand, so that he could properly testify as a witness. We think, in spite of the use of the word "actual" to qualify the knowledge required, that first-hand personal knowledge is not what is meant.'

"In Frank Martin-Laskin Co. v. Goetsch, [and] Industrial Comm.,172 Wis. 548, 179 N.W. 740, 741, the court said: ``We are therefore of the opinion that, where the employer has notice that an accident has happened, and that some injury, no matter how trifling, has resulted to an employee by reason thereof, he has the knowledge that it was intended should be brought home to him by the service of the written notice. Of course, it must be understood that the nature of the injury should be described as fairly as possible under the facts and circumstances existing at the time the notice is given.'

"The court, in Bates Rogers Const. Co. v. Emmons, 205 Ky. 21,265 S.W. 447, 448, made the following statement: ``But notice of a physical injury carries with it notice of all those things which may reasonably be anticipated to result from it.'

"In discussing the question of knowledge, the court in Marshall Field Co. v. Dunlap [and] Industrial Comm., 305 Ill. 134,137 N.E. 121, 123, says: ``No notice which could have been given would have furnished the employer with fuller knowledge of the facts and circumstances than it possessed the day after the accident. It did not know the disastrous results which were to follow and no notice could have furnished it with such knowledge. It had knowledge of all the details connected with the accident, and in such case the employer is not relieved from liability even if technically it had not been given a notice by the injured employee.'"

See 71 C.J., "Workmen's Compensation Act," Secs. 769, 770.

I conclude that appellant had actual knowledge of the injury, and that the judgment of the trial court should be affirmed.