Addison v. Tessier

• Decision Date: 10 January 1957
• Docket Number: No. 6112,6112
• Citation: 1957 NMSC 2,62 N.M. 120,305 P.2d 1067
• Parties: Marvin E. ADDISON, Plaintiff-Appellee, v. George D. TESSIER, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1067

305 P.2d 1067

62 N.M. 120

Marvin E. ADDISON, Plaintiff-Appellee, v. George D. TESSIER, Defendant-Appellant.

No. 6112.

Supreme Court of New Mexico.

Jan. 10, 1957.

Rehearing Denied Jan. 31, 1957.

Martin A. Threet, Albuquerque, for appellant.

Joseph L. Smith, Henry A. Kiker, Jr., Heister H. Drum, Albuquerque, for appellee.

LUJAN, Chief Justice.

This is an action for the recovery of damages for personal injuries. Plaintiff had judgment and defendant appeals. The parties will be referred to as they appeared in the district court.

Plaintiff, was an employee of defendant, engaged in the manufacture, installation, erection, maintenance, repair and design of displays or signs involving the use of electric lines in conjunction with gas-filled glass-tubes, commonly known as 'neon signs.'

He had been directed by his superior to remove a neon sign from the premises located at 815 Fourth Street, N. W., in Albuquerque, New Mexico, and while so doing, in company with another employee of defendant, several bricks from the fire wall of the building fell upon him causing him to fall from a ladder, on which he was working, to the sidewalk inflicting the injuries complained of.

It is not claimed that the verdict rendered by the jury was excessive, and therefore, a statement need not be made as to the nature and extent of plaintiff's injuries, or as to his earning capacity before the accident.

Under assignments of error one and two the defendant urges that the court erred (1) in overruling his motion to dismiss plaintiff's complaint; and (2) in striking his third, fourth and fifth affirmative defenses, to-wit: contributory negligence, assumption of risk and want of ordinary care.

Under these assignments of error defendant contends that the plaintiff cannot maintain this action, because his remedy under the Workmen's Compensation Act is exclusive. Plaintiff alleged in his complaint that the defendant failed, neglected and refused to comply with the provisions of said act, including the provisions relating to insurance.

The controversy has its setting in a background of law and fact. Our Workmen's Compensation Act is of an elective type. The legislature has implemented a purpose to induce employers and employees to elect to operate under its provisions by weakening the position of a rejecting employer or employee in actions wherein an employee seeks to recover damages for personal injuries or death.

At the very outset we may observe that the apparently conflicting provisions of the act render the solution of the problem difficult. Defendant's theory is that all employers subject to the act are presumed to have accepted the provisions thereof; that the only method open to said employers who are subject to the act to exempt themselves from it is by filing with the clerk of the district court for the county in which such workmen are employed, a notice in writing to the effect that they elect not to accept the provisions of the act; that all employees subject to the act are conclusively presumed to have accepted the provisions thereof, unless such employees have at the time or prior to entering into their contracts of hire with such employers, given notice in writing to their employer and such clerk of the district court, electing not to become subject to the provisions of the act; and that the rights and remedies given the employees are conclusive. That in the instant case the plaintiff became bound by the provisions of the act on account of his failure to give the required notice not to become subject to the act.

Plaintiff's theory is that an employee is conclusively presumed to have accepted the provisions of the act, only if his employer is subject to the provisions thereof and has complied with its requirements, including insurance, and that no presumption that he was bound by the act could have arisen prior to such compliance.

Section 59-10-4 of 1953 Compilation, provides:

* * * 'Every employee shall be conclusively presumed to have accepted the provisions of this act * * *, if his employer is subject to the provisions thereof and has complied with its requirements, including insurance, and, unless said employee has, at the time of or prior to entering into his contract of hire, express or implied, with such employer, given notice in writing to his employer and to such clerk of the district court, electing not to become subject to the provisions of this act * * *.' (Emphasis supplied.)

Section 59-10-3 of 1953 Compilation, provides:

'Every such employer * * * shall file in the office of the clerk of the district court for the county in which such workman is, * * * to be employed, * * * good and sufficient undertaking in the nature of insurance or security for the payment to any and all such injured workmen, * * * except that in case any employer shall be able to show to the satisfaction of such judge that he, or it, is financially solvent, and that the giving of such security is unnecessary, such judge shall issue thereto a certificate to that effect, which shall also be filed with said clerk and thereupon such employer shall be excused from filing such undertaking otherwise required until the further order of such judge, if any, directing otherwise. * * *' (Emphasis supplied.)

The record discloses that the defendant had not exempted himself from the operation of the Workmen's Compensation Act, therefore he is conclusively presumed to have accepted its provisions. Section 59-10-4, 1953 Compilation. If the defendant had been carrying insurance, or had relieved himself from so doing, as required by the act, it would have been conclusively presumed that the plaintiff had himself accepted the provisions of the act and this action could not have been maintained because in that case the remedy under said act is exclusive. Section 59-10-4, 1953 Compilation. But the defendant did not carry workmen's compensation insurance, nor had he relieved himself of such requirement as required by Sec. 59-10-3, supra. Therefore defendant was not operating under the provisions of the act, and plaintiff, under such circumstances, could not have been conclusively presumed to have accepted the provision thereof. Consequently, this action at law lies in favor of plaintiff and against the defendant, and the defenses enumerated in Sec. 59-10-5, were not available to defendant. See, Schneider, Workmen's Compensation Laws Vol. 1, Sec. 91 pp. 230, 231.

The case of Thompson v. Dale, 59 N.M. 290, 283 P.2d 623, 628, relied upon by appellant as authority for his contention that he is entitled to the common-law defenses of contributory negligence, assumption of risk and the fellow servant doctrine, is not in point or applicable to the instant case. There we were dealing with an injury sustained by a farm and ranch laborer while in the course of his employment. Justice Sadler, speaking for the court said:

'* * *. Perhaps, before proceeding further, we should dispose of a contention made by plaintiff that defendants are denied the right to rely upon the common law defenses of assumed risk, contributory negligence and fellow servant by a certain section of the Workmen's Compensation Act. Of course, the one last mentioned, that of fellow servant, is excluded from consideration since there is nothing in the evidence to warrant that defense. The only occasion for even mentioning it is that it is listed along with the other two defenses which counsel for plaintiff say are denied to defendants under the language of 1953 Comp. Sec. 59-10-5. * * *

'It seems clear to us that the questioned section can have no application to an occupation that is excepted from the Act. We have held it does not apply to employers of farm and ranch labor. Koger v. A. T. Woods, Inc., 38 N.M. 241, 31 P.2d 255. The statute, 1953 Comp. Sec. 59-10-4, expressly excepts from its provision certain employers.

It reads:

"This act shall not apply to employers of private domestic servants or of farm and ranch laborers.'

'Decided cases under similar provisions in the Workmen's Compensation laws of other states support the conclusions we have reached on this subject. [Citing text writers and cases from other states.]

'Having concluded that the defendants are not barred by the questioned language of the Workmen's Compensation Act from relying on the common law defenses of contributory negligence and assumed risk, * * *.'

We conclude that the trial court did not err either in overruling the defendant's motion to dismiss plaintiff's complaint or in striking his third, fourth and fifth affirmative defenses.

The defendant's third claim of error relates to the trial court's refusal to direct a verdict in his favor. This motion is based upon the defendant's theory that both the appellee and defendant were bound by the Workmen's Compensation Act. But the appellee could not be conclusively presumed to have accepted the provisions of the act, since the defendant had not complied with its requirements, including insurance. Until there is a compliance with the requirements of the act relating to insurance by the employer, then, no presumption arises that the employee is bound by the act.

In passing on a motion for a directed verdict the court must view the plaintiff's evidence in the most favorable aspect, indulging in all reasonable inference to be drawn from plaintiff's evidence and disregarding all unfavorable testimony and inferences. Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047. The uncontradicted testimony of Rubie V. Krohn, clerk of the district court, shows that the defendant had not complied with the provisions of the act relating to insurance. The court did not err in denying the motion for an instructed verdict.

The defendant's fourth claim of error relates to the refusal of the trial court to give his requested instruction No. 1, which reads in part as follows:

'In this case, you are instructed, should you find from the evidence that neither the plaintiff nor ...