From a judgment denying plaintiff-appellánt medical and hospital benefits under the workmen’s compensation act this appeal is prosecuted. Recovery was denied on the ground that plaintiff had failed to give notice in writing to his employer of the accident and injury within thirty days after the same occurred, it being further determined that neither рlaintiff’s employer, superintendent or foreman had actual knowledge of the occurrence so as to excuse written notice.
Plaintiff was a long haul driver for defendant. On December 7, 1960, while he was on a trip for defendant as a driver of a truck along with another driver, plaintiff ■suffered a heart attack in Cameron, Missouri, requiring his hospitalization there for some 35 days, after which he was returned to Albuquerque by airplane, the ticket having been arranged by the employer.
Admittedly, no written notice was given within 30 days after the heart attack occurred. Unquestionably, defendant’s superiors in Albuquerque had knowledge of plaintiff’s hospitalization very shortly after the occurrence. Did this аmount to such knowledge as to relieve plaintiff of the obligation to give written notice within 30 days?
The pertinent statute is § 59-10-13.4, N.M.S.A.1953, which reads:
“A. Any workman claiming to be entitled to comрensation from any employer shall give notice in writing to his employer of the accident and of the injury within thirty [30] days after their occurrence; unless, by reason of his injury or some other cause beyond his control the workman is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done, and at all events not later then sixty [60] days after the occurrence of the accident.
“B. No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.”
Difficulty in applying our statute is encountered by virtue, of the requirement (1) that the notice be in writing; and (2) that it must be not only of the injury, but also of the accident. Likewise, to excuse the notice, there must be knowledge of the “occurrence” by a superior in charge of the work. The “occurrence” can mean nothing but the “accident” when cоnsidered in the context in which it appears in § 59-10-13.4 (B), quoted above. In this regard the statute differs from its form prior to its amendment by § 8, Ch. 67, N.M.S.L.1959, which changed the word “injury” to “accident” in § 59-10-13.4 (B), quoted abоve. To our minds the change was a significant one. This is what Professor Larson denominates an “accident-type statute” in his work on Workmen’s Compensation Law, and which he further states is wrong and should be changed. (§ 78.42(c)). In § 78.42(d) he points out that the remedy is through legislative amendment, absent which most courts have found no alternative but to apply the statutе literally. See also, § 78.42(b).
We have been called upon to interpret the notice section of our statute in a number of cases. Our first decision discussing what constitutes “actual knowledge” of the occurrence of the injury is Ogletree v. Jones,
“ * * * Notice in casual conversation is insufficient. Herbert v. [Lake Shore] L. S., etc., Ry. Co.,200 Mich. 566 ,166 N.W. 923 . It is not enough for one to say he is injured and even show the injured limb without some showing that notice was given or that the employer had actual knozvledgc of what caused it. Norman Steam Laundry v. State Industrial Comm.,160 Okl. 107 ,16 P.2d 92 .”
The last occasion we had to cite Ogletree v. Jones, supra, and quote the foregoing language was in the recent case of Daulton v. Laughlin Bros. Drilling Company,
Plaintiff’s superiors, being defendant’s superintendent, foreman or dispatcher, knew plaintiff was hospitalized, and although no finding was made by the court as to whether or not they knew that plaintiff’s hospitalization resulted from a heart attack, we may assume they did. Be this as it may, in Ogle-tree v. Jones, supra, we adopted language saying, “ ‘Mere notice tо the employer that the employee became sick while at work cannot be considered “actual notice of injury” within the provisions of the act excusing notice.’ ” What more is present here? Defendant may be charged with knowledge that plaintiff became sick while performing his duties as a truck driver; even that he had a heаrt condition, and that his sickness and hospitalization resulted from a heart attack. Still, there is nothing more than the employer’s knowledge that the workman became sick whilе at work, stated in Ogletree v. Jones, supra, to be insufficient to excuse written notice.
This is true even though under certain circumstances we have recognized that “aсcident” and “injury” may not be separable. Webb v. New Mexico Pub. Co.,
Plaintiff would avoid the bar of the statute resulting from his failure to give notice as required by § 59-10-13.4(A), supra, if not excused under § 59-10-13.4(B), supra, by recourse to § 59-10-28, N.M.S.A.1953, which reads:
“No claim for compensation under the Workmen’s Compensation Act [59-10-1 to 59-10-37], as it now provides or as it may hereafter be amended, shall be barred prior to thе filing of such report or within thirty (30) days thereafter, Provided, however, that this section shall not be construed to shorten the time now provided for filing such claims with the district court.”
In Sanchez v. Bernalillo County,
On oral argument plaintiff suggests that the fact that plaintiff was hospitalized under the facts here presеnt should excuse giving the thirty days notice. He also argues that § 59-10-13.4, N.M.S.A.1953, should not apply where only medical benefits are being sought. Neither of these contentions were made to the court below, nor were they argued in the briefs. Accordingly, they are not properly before us, and we decline to pass upon them. Compare Davis v. Seversоn,
Attorney fees in the trial court and here are also sought. However, not having established any right to benefits under the compensation act, plaintiff is not entitled to an award for attorney fees. Utter v. Marsh Sales Company, Inc.,
The judgment appealed from is affirmed. It is so ordered.