GEORGE v. MILLER & SMITH
| Decision Date | 08 June 1950 |
| Docket Number | No. 5263,5263 |
| Court | New Mexico Supreme Court |
| Parties | GEORGE v. MILLER & SMITH, Inc., et al. |
W. T. O'Sullivan, Albuquerque, Joseph L. Smith, Albuquerque, for appellant.
Simms, Modrall, Seymour & Simms, Albuquerque, James E. Sperling, Albuquerque, for appellees.
Rodey, Dickason & Sloan, Frank M. Mims, Jackson G. Akin, all of Albuquerque, amici curiae.
The plaintiff (appellant) filed a claim under the Workmen's Compensation Act, 1941 Comp. § 57-901 et seq., in the District Court of Bernalillo County for an injury sustained while working as structural steel construction foreman in erecting a steel bridge across the Rio Grande River near Otowi, New Mexico. He alleged that said injury has caused him total disability.
The defendants (appellees) answered jointly. They admitted that the appellant suffered an injury by accident arising out of and in the course of his employment and the amount of his weekly earnings. They denied the extent and permanency of the injury. By way of new matter, they alleged that the plaintiff had been paid compensation continuously at the rate of $22.00 per week from March 12, 1948 to the date of filing of the claim, except for the period from November 7, 1948 to February 7, 1949, during which time the plaintiff worked at his regular employment. They further alleged, that in addition to the weekly compensation paid to the plaintiff, they had defrayed all necessary expenses incurred for medical attention in accordance with the provisions of the act, and that the plaintiff has noclaim against them. They prayed for a dismissal of the claim.
On September 30, 1949, the trial court heard the parties upon questions of law raised by the respective pleadings and at the conclusion of said hearing it made and entered an order dismissing plaintiff's claim on the ground that it had been prematurely filed. From this order plaintiff appeals.
The plaintiff argues that although the maximum workmen's compensation benefits, to which he is entitled, are being regularly paid by the defendants, as provided by the act, nevertheless, he has the right to invoke the jurisdiction of the court, at any time he elects to do so, for the purpose of having the court determine the permanency of his disability and the amount and duration of such benefits.
On the other hand the defendants contend that, inasmuch as the plaintiff was being paid maximum compensation to which he was entitled under the law governing the case at bar, no suit could be instituted to have the amount of compensation and the period of time, during which payments were to be made, definitely fixed, so long as the maximum compensation was being regularly paid. The correctness of this contention cannot be gainsaid.
In interpreting a statute the intent is to be first sought in the meaning of the words used, and when they are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the legislature, no other means of interpretation should be resorted to. Section 57-913, 1941 Compilation, reads as follows: ...
To continue reading
Request your trial
-
Webb v. Hamilton
...intent is to be determined primarily by the language of the act. De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694; George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285; Albuquerque Bus Co. v. Everly, 53 N.M. 460, 211 P.2d 127. Words used in a statute are to be given their ordinary and ......
-
State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo
...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 fo......
-
Montoya v. McManus
...and resort may be had to construction only in case of ambiguity. De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694; George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285. Petitioner suggests that since he construes the word 'bond' as used in Sec. 3-9-10, supra, to mean a mere promise to ......
-
Hathaway v. New Mexico State Police, 5617
...of substance to form. Fortunately, we see no jurisdictional reason compelling such action. Admittedly, the case of George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285, does not present a parallel case and compels no such result. The defendants themselves concede as much in closing the......