State ex rel. Mountain States Mut. Cas. Co. v. Swope

Decision Date18 August 1954
Docket NumberNo. 5819,5819
Citation273 P.2d 750,58 N.M. 553,1954 NMSC 82
PartiesSTATE ex rel. MOUNTAIN STATES MUT. CAS. CO. v. SWOPE.
CourtNew Mexico Supreme Court

Simms & Modrall and Vance Mauney, Albuquerque, for petitioner.

Joseph L. Smith, Lorenzo A. Chavez and Arturo G. Ortega, Albuquerque, for respondent.

LUJAN, Justice.

M. L. Drinkard, on October 10, 1951, suffered an injury by accident arising out of and in the scope of his employment while working for the W. T. Bookout Construction Company. From the time of his injury up to and including February 28, 1954, The Mountain States Mutual Casualty Company, insurer for the above construction company, paid all compensation payments due up to that time. The adjuster for the insurance company personally delivered this check for the February 28th instalment and told Drinkard that he would receive no further checks if he did not settle for $3000. He testified as follows:

'* * *

'Q. Has there been any time since you were injured that the insurance company, The Mountain States Mutual Casualty Company, has not paid you the $30.00 per week? A. Well, I'll tell you. I've got the checks, but the last time the field man come to my house, I told him to keep coming up now until we filed suit against him. He told me--this will be the last check that you'll git, if you don't settle for $3,000.00. He said--I can't offer you that myself, but we could probably do that, but if you can't do that they won't be any more checks. And I said--well, that's alright with me, and I said * * * and he said--if you want to get your attorney, if you've got one, he said--that's your privilege; but he said this is the last check.'

The foregoing conversation necessarily took place between February 28th, the date of the check, and March 1st, the date the check was cashed. Thereafter Drinkard (claimant) continued to receive all compensation payments due him to the present time in so far as the record shows.

On March 4, 1954, after receiving his compensation payment which became due and payable on February 28, 1954, and which was cashed by him March 1, 1954, he filed his present cause of action. The insurance company filed its answer alleging payment of all compensation payments due, medical expenses, and the defense of premature filing of suit. Thereafter, the insurer filed a motion to dismiss said claim on the ground that the court did not have jurisdiction to hear the same. This motion was denied. On July 2, 1954, this court issued an alternative writ of prohibition directed to the Honorable Edwin L. Swope, Judge of the Second Judicial District, commanding him to refrain, desist and withhold from proceeding further in the matter, or show cause why the alternative write should not be made absolute. It is on this state of the record that the matter comes before this court.

The Mountain States Casualty Company (petitioner), contends that the trial court had no jurisdiction to hear and determine the issues in the cause, and we agree with such contention.

Section 57-918, provides in part as follows:

'* * * but for any such injury for which compensation is payable under this act (Secs. 57-901-57-931), the employer shall in all proper cases, as herein provided, pay to the injured workman or to some person authorized by the court to receive the same, for the use and benefit of the beneficiaries entitled thereto, compensation at regular intervals of no more than sixteen (16) days apart, in accordance with the following schedule, * * *.' (Emphasis supplied.)

The record discloses that the compensation payment to which the claimant was last entitled, before suit, became due and payable on February 28, 1954, and that it was duly paid on that date. Therefore, the next regular compensation payment or instalment would not become due and payable, as provided by the act, until March 14, 1954; it was made on that date and the check cashed by claimant was not 15th. This particular instalment was not due and payable when the suit was instituted, consequently, the suit was premature.

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8 cases
  • State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo
    • United States
    • New Mexico Supreme Court
    • October 5, 1962
    ...develop delays and other inconveniences offsetting entirely the advantages often suggested for it.' State ex rel. Mountain States Mut. Cas. Co. v. Swope, 58 N.M. 553, 273 P.2d 750, was a prohibition case in which this court held that prohibition would lie to prevent a trial court from heari......
  • Spieker v. Skelly Oil Co., 5786
    • United States
    • New Mexico Supreme Court
    • September 16, 1954
    ...N.M. 747, 263 P.2d 690. Since the filing of briefs herein, the Court has handed down its decision in State ex rel. Mountain States Mutual Casualty Co. v. Swope, 58 N.M. 553, 273 P.2d 750. The trial court apparently joined appellee's counsel in the belief that the Hathaway case was controlli......
  • Arther v. Western Co. of North America
    • United States
    • Court of Appeals of New Mexico
    • July 2, 1975
    ...of compensation to which the workman or dependent is entitled. Moody v. Hastings, 72 N.M. 132, 381 P.2d 207 (1963); State v. Swope, 58 N.M. 553, 273 P.2d 750 (1954); compare Selgado v. New Mexico State Highway Department, 66 N.M. 369, 348 P.2d 487 (1960). There is no finding, and none was r......
  • Fresquez v. Farnsworth & Chambers Co.
    • United States
    • New Mexico Supreme Court
    • December 29, 1955
    ...recent past. The cases mentioned are George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285; State ex rel. Mountain States Mutual Casualty Co. v. Swope, 58 N.M. 553, 273 P.2d 750; Spieker v. Skelly Oil Co., 58 N.M. 674, 274 P.2d 625. Compare, Swallows v. City of Albuquerque, 59 N.M. 328,......
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