State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo

• Decision Date: 05 October 1962
• Docket Number: No. 7205,7205
• Citation: 70 N.M. 475,1962 NMSC 134,375 P.2d 118
• Parties: STATE of New Mexico, ex rel. KERMAC NUCLEAR FUELS CORPORATION and Mountain States Mutual Casualty Company, Relators, v. The Honorable Paul F. LARRAZOLO, Judge of the District Court of the Second Judicial District of the State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 118

375 P.2d 118

70 N.M. 475

STATE of New Mexico, ex rel. KERMAC NUCLEAR FUELS CORPORATION and Mountain States Mutual Casualty Company, Relators, v. The Honorable Paul F. LARRAZOLO, Judge of the District Court of the Second Judicial District of the State of New Mexico, Respondent.

No. 7205.

Supreme Court of New Mexico.

Oct. 5, 1962.

Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for relators.

Joseph L. Martinez, Ramon Lopez and Smith, Kiker & Kitts, Albuquerque, for respondent.

MOISE, Justice.

This is an original proceeding wherein relator seeks to prohibit respondent judge from hearing two workmen's compensation cases which were consolidated for trial.

On July 20, 1960, one Bobbie L. Turner, herein referred to as plaintiff, filed suit for workmen's compensation against relator in cause No. 9951 on the docket of the district court of Valencia County. In his suit he complained of injuries allegedly sustained on July 26, 1959, and on June 10, 1960, while employed by relator.

On June 6, 1961, another suit was filed by plaintiff seeking workmen's compensation for the same two injuries. This second suit is identical with the first and is cause No. 10510 on the docket of the district court of Valencia County.

Relator moved to dismiss cause No. 10510 on the ground that there was a prior pending action between the same parties concerning the same subject matter and involving the same issue. Thereafter, motion was filed by plaintiff asking that the two cases be consolidated for trial. An order consolidating them for trial was entered and another order was entered reserving and holding in abeyance the motion to dismiss until the evidence on the consolidated trial had been heard.

Relator filed motions to dismiss or, in the alternative, for summary judgment in both actions with an affidavit attached and the court by order reserved ruling on these motions until all the evidence was presented at the trial.

The respondent set the consolidated cases for trial, whereupon relator sought and we issued our alternative writ of prohibition. Return having been duly made, we now consider the issues presented.

It is relator's position that (1) respondent is without jurisdiction to hear cause No. 9951 because when the case was filed relator had neither failed nor refused to make any compensation payments due and owing the plaintiff workman; (2) respondent is without jurisdiction to hear cause No. 10510 insofar as the alleged injury of July 26, 1959, is concerned because the claim is barred by the statute of limitations; (3) respondent is without jurisdiction to hear either case because of failure of plaintiff workman to give notice as required by law and relator had no knowledge of compensable injuries; and (4) cause No. 10510 should have been dismissed because when it was filed cause No. 9951, the complaint in which was identical, was pending in the same county, involving the the same parties.

In connection with our consideration of the first three points, we note and comment on three decisions of this court.

State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court of Eighth Judicial District, 38 N.M. 451, 34 P.2d 1098, grew out of a workmen's compensation case where a demurrer to the complaint on the grounds that the action arose more than one year prior to the filing of suit was overruled and prohibition was then sought to prevent the court from hearing the cause. We there had the following to say in an opinion discharging the writ:

'The sole question, on the merits, which had developed in the district court, was whether the compensation proceeding had not been filed too late, according to the provisions of the statute. It is well-understood law that prohibition lies only to prevent action without jurisdiction. So the petitioner must show that the district courts are without jurisdiction in such a case. For present purposes we must assume that a recovery of compensation could not be upheld in this case, being barred by statute.

* * *

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'* * * Here the test of jurisdiction is not the right or authority to render a particular judgment; it is the right or authority to render any judgment. For instance, if a probate court had assumed jurisdiction of this case, prohibition would properly have lain. Any judgment it might render would be void. We would have no more power to review such a judgment than the probate court would have to render it. * * *

'That the district court was about to decide those matters wrongly was no concern of ours when merely investigating the jurisdiction. Nor was it material that we might on review be compelled to direct a dismissal of the appeal.

'It might be convenient, in this case as in many others, to stop proceedings as soon as it appears that there is an irremedial defect in the cause of action. Such is not the policy of our law. Such a system might 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 hearing and determining a workmen's compensation case where it appeared that there had been no 'failure or refusal' by the employer to pay any installment of compensation due. Without in any way noticing the decision in State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, etc., supra, or the rule there announced, it was stated that in order to confer jurisdiction on the district court there must have been a failure or refusal by the employer to make compensation payments required by the statute. Also, it was stated that 'to permit suits to be filed, * * * would be to condone a circumvention of the letter and spirit of the act itself, which we decline to do.'

We also notice State ex rel. J. P. (Bum) Gibbins, Inc. v. District Court of the Fifth Judicial District, 65 N.M. 1, 330 P.2d 964, wherein prohibition was granted restraining the district court from hearing a claim for medical and surgical benefits under the workmen's compensation act until there had been a judicial determination of a compensable injury for which the employer was liable under the act. It was stated that until this determination was made the district court was 'without power to compel the employer to furnish medical, surgical and hospital services to his employees.' Neither of the two preceding cases mentioned above were cited as authority for the conclusion reached. However, the decision would appear to be in accord with State ex rel. Mountain States Mut. Cas. Co. v. Swope, supra, and although it is not so stated in either decision, the court must have been moved to issue its writ on a theory that the lower court was threatening to act in excess of its jurisdiction, and accordingly its action would be void. See State ex rel. Miller v. Tackett, 68 N.M. 318, 361 P.2d 724. Concerning such conclusion we express considerable reservation. In support of the idea that there may be some question as to the continued applicability of State ex rel. J. P. (Bum) Gibbins, Inc. v. District Court, etc., supra, see Martinez v. Wester Brothers Wholesale Produce Co., 69 N.M. 375, 367 P.2d 545. Also see Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913.

An analysis of the three cases mentioned leads us to the inescapable conclusion that unless the cases can be reconciled on the basis suggested above, there is conflict between State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, etc., supra, and the later two cases. Accordingly, we must determine the correct rule for present and future application.

The rule as announced in State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, supra, has been repeated and followed in numerous cases, of which the following are only a few: State ex rel. Oil Conservation Commission v. Brand, 65 N.M. 384, 338 P.2d 113; State ex rel. Prince v. Coors, 52 N.M. 189, 194 P.2d 678; State ex rel. Heron v. District Court of First Judicial District, 46 N.M. 296, 128 P.2d 454; State ex rel. Stanley v. Lujan, 42 N.M. 291, 77 P.2d 178. See also Gilmore v. District Court of Fifth Judicial Dist., 35 N.M. 157, 291 P. 295.

This court, in a large number of appeal cases not involving prohibition, has stated that no jurisdiction vests in the district court if all payments of compensation due under the law have been made, if the case was not timely filed, or if notice was not given.

Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302, stated that the requirement of timely filing was jurisdictional, and concluded that the notice requirement was a 'condition precedent' to recovery. Reliance was placed on Caton v. Gilliland Oil Co. of New Mexico, 33 N.M. 227, 264 P. 946, which held simply that if suit was not timely filed the claim, right and remedy were all barred. Also cited was Taylor v. American Employers' Ins. Co. of Boston, Mass., 35 N.M. 544, 3 P.2d 76, where a similar conclusion was reached. Maestas v. American Metal Co. 37 N.M. 203, 20 P.2d 924, also cited, is to the same effect.

Clower v. Grossman, 55 N.M. 546, 237 P.2d 353, while recognizing Ogletree v. Jones, supra, as holding that the requirement of timely notice was jurisdictional, concluded that if the question of notice was not timely and properly raised the court still had jurisdiction to hear and try the case, thus distinguishing it from Ogletree v. Jones, supra, and arriving at a different result.

In George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285, we stated that there must have been a failure or refusal to make compensation payments due under the act in order for 'jurisdiction' to be conferred on the district court. In that case it appears that medical expenses and compensation were being paid by the employer at the time suit was filed. Claimant argued that notwithstanding this fact he had a right to have the court ...