Battersby v. Bell Aircraft Corp.

• Decision Date: 16 December 1958
• Docket Number: No. 6402,6402
• Citation: 332 P.2d 1028,65 N.M. 114,1958 NMSC 135
• Parties: Charles P. BATTERSBY, Plaintiff-Appellant, v. BELL AIRCRAFT CORPORATION, Employer, and Aetna Casualty and Surety Company, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1028

332 P.2d 1028

65 N.M. 114

Charles P. BATTERSBY, Plaintiff-Appellant, v. BELL AIRCRAFT CORPORATION, Employer, and Aetna Casualty and Surety Company, Insurer, Defendants-Appellees.

No. 6402.

Supreme Court of New Mexico.

Dec. 16, 1958.

Shipley & Seller, Alamogordo, for appellant.

W. C. Whatley, Las Cruces, Gilbert, White & Gilbert, Santa Fe, for appellees.

COMPTON, Justice.

This is an appeal from an order vacating a judgment in a workmen's compensation case. For clarity, it should be stated that the proceeding is not one involving changed conditions of the workman.

The claim for compensation was filed in Otero County. The main question before the lower court was the extent of disability suffered by the claimant, and at a hearing on October 5, 1956, the court orally announced that a finding would be made that claimant was totally and permanently disabled from performing his usual and ordinary work.

On October 8, 1956, appellees filed a motion for a new trial. As an alternative, on October 10, 1956, they filed a motion to reopen the case for further hearing as to claimant's disability, in the event their motion for a new trial was overruled, and to require the claimant to undergo further medical examinations.

Subsequently, on October 20, 1956, the motion for a new trial was denied without objection. On the same day, judgment was entered pursuant to the prior announcement of the court, and fees for claimant's attorney were fixed at $1,500. Thereafter, on January 10, 1957, over appellant's objection, the motion to reopen the case was sustained, as was an oral motion to vacate the judgment on the ground of 'surprise', the ground urged in the motion to reopen. The order vacating the judgment directed claimant to report in Albuquerque on January 30, 1957, for further medical examination at the office of a surgeon selected by the court; further hearing was to be the next day.

When appellant sustained the injury, he was directed by his employer to Dr. Baumgartner, the company surgeon. Dr. Baumgartner treated him and at the trial gave the only medical evidence. Since the validity of the order vacating the judgment must rest on the motion to reopen, the motion is set forth as follows:

'The defendants move the Court, in the event their motion for a new trial is overruled, to reopen this case and to require the plaintiff to submit to further medical examination by doctors other than Dr. Myron R. Baumgartner, and for the hearing of the medical evidence which may be thus developed, and for grounds of motion state:

'1. That Dr. Baumgartner, who was called by and testified for the plaintiff in the trial of this case at Alamogordo on Friday, October 5, 1956, is the physician to whom defendant-employer referred the plaintiff for examination and treatment upon the occasion when the plaintiff made complaint that he had been injured and required medical attention, and is the physician who examined and treated the plaintiff for the injury he said the plaintiff had suffered.

'2. That following the surgical operation and treatment given by said Dr. Baumgartner to the plaintiff, and under date of April 20, 1956, said Dr. Baumgartner made out and forwarded to both defendants his so-called surgeon's final report and bill, copy of which, marked Exhibit 'A' is hereto attached, hereby referred to and made a part hereof, in which, among other things, he said that the plaintiff was discharged on April 13, 1956, as cured, and on April 16, 1956, was able to return to work, with the suggestion, however, that his work should involve no heavy lifting in the future.

'3. That said Dr. Baumgartner, following futile efforts on the part of the defendants to secure from him a written narrative report of his examinations, treatment and his opinion as to the physical condition of the plaintiff, failed ever to furnish such written narrative report and opinion, and because of his failure in this respect, was on September 4, 1956, contacted and interviewed by LaFel E. Oman, one of the attorneys for the defendants, and at that time and in that interview said physician informed Mr. Oman that the plaintiff had fully recovered and in his opinion no reason existed why the plaintiff could not return to and perform the normal duties of a painter and carpenter, with the exception, however, that the plaintiff should not lift heavy objects; and he never at any time told any representative of the defendants that the plaintiff, in his opinion, was otherwise disabled.

'4. That the defendants, believing from the written surgeon's first report and bill, made April 20, 1956, and from the statements made by Dr. Baumgartner to Mr. Oman on September 4, 1956, and being unable to secure the services of any other physician at Alamogordo to examine the plaintiff prior to the trial and be prepared to testify at the trial, went to trial with no thought or idea that Dr. Baumgartner would testify that the plaintiff is now and will not be able to perform the normal duties of a painter and carpenter.

'5. That the said Dr. Baumgartner was at the time of the trial and had been for some three or more years the examining physicians at Alamogordo for the defendant-employer, and in that capacity, and having examined, cared for and treated plaintiff at the instance of the employer defendant and being thus possessed of knowledge which he knew the defendants did not have, was in duty bound to give to the defendants the benefit of his knowledge, his findings and his opinion respecting the plaintiff's physical condition...