Buffington v. Continental Cas. Co.

• Decision Date: 29 December 1961
• Docket Number: No. 6844,6844
• Citation: 1961 NMSC 179,367 P.2d 539,69 N.M. 365
• Parties: Virgil BUFFINGTON, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 539

367 P.2d 539

69 N.M. 365

Virgil BUFFINGTON, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.

No. 6844.

Supreme Court of New Mexico.

Dec. 29, 1961.

Heidel & Swarthout, Lovington, for appellant.

Neal & Neal, Hobbs, for appellee.

CHAVEZ, Justice.

This is an appeal from a summary judgment against a workmen's compensation claimant, dismissing his claim against one of two insurers, the Continental Casualty Company, as set forth in the first count of his amended complaint, filed November 18, 1959.

Appellant's amended complaint under count 1 alleged that in the course of his employment he suffered an accidental injury on or about November 15, 1957, while lifting a heavy wooden beam, but continued to work for his employer, doing the same work and receiving his regular wages averaging $132.50 per week, until July 22, 1959, when he became disabled by reason of the injury of November 15, 1957, which then became apparent and compensable, and which was diagnosed on July 23, 1959, as a ruptured intervertebral disc.

In the second count, appellant's claim against appellee, Traders & General Insurance Company, alleged that in the course of his employment with appellee, Will Noack, and being subject to the physical condition mentioned in count 1, to-wit, the ruptured intervertebral disc, the stress and strain of his work of laying floor tile aggravated said existing condition, and as a natural and direct result, appellant became disabled on July 22, 1959.

In both counts, appellant alleged that appellees had actual knowledge and notice of the accident and the compensable injury, and alleged further that appellee, Continental Casualty Company, was the insurance carrier for the employer from prior to November 15, 1957, to August 15, 1958, and that from August 15, 1958, to the date of the amended complaint, the insurance carrier was Traders & General Insurance Company.

On October 29, 1959, appellant filed his jury demand.

On November 23, 1959, appellees Noack and Continental Casualty Company, filed a separate answer denying generally the material allegations of the amended complaint, but admitted the employment, salary, insurance coverage, and failure to pay compensation. They also affirmatively alleged that they had no notice or knowledge of an accidental injury and further, since appellant had failed to file his claim within the period provided by law, that the action was barred.

A separate answer was also filed by appellees, Noack and Traders & General Insurance Company, but Traders & General Insurance Company, not being an appellee herein, the substance thereof is not material to this appeal.

Our attention is directed to the fact that between the date of the first accident, November 15, 1957, and the date of the second accident, July 22, 1959, a new Workmen's Compensation Act was adopted. Laws 1959, Ch. 67.

On April 21, 1960, the deposition of appellant taken on March 14, 1960, was filed.

A pretrial conference was held and on May 2, 1960, the trial court entered an order reciting that at the pretrial conference no admissions or stipulations were obtained by counsel, but that the trial court, after considering appellant's deposition, concluded from said deposition:

'1. That no action can be maintained because of the alleged injury of November, 1957, because of lack of knowledge and failure to give notice within the time provided by law; that the alleged injury of November, 1957, was not latent, but was apparent to claimant at all times. That the claim as to this alleged injury of November, 1957, should be dismissed as to defendant, Continental Casualty Company, and the matter removed from the jury docket.

'2. That this cause is at issue as to the second alleged injury of July, 1959, there being disputed questions of fact, not resolved by the deposition, as to notice of injury and awareness of the extent of the disability resulting from the firt alleged injury.'

The trial court ordered that the case be dismissed with prejudice as to appellee, Continental Casualty Company, to which appellant excepted.

Appellant relies upon three points for reversal:

I. In dismissing plaintiff's complaint as to defendant, Continental Casualty Company, after the pretrial conference, the trial court determined certain factual issues and thus committed error by exceeding the scope of the pretrial conference.

II. Plaintiff's deposition, on which the trial court's order was based, does not admit nor show that the defendant-employer, Noack, did not have actual knowledge of the occurrence of the injury of November, 1957.

III. That if written notice was required, the time for same did not begin to run until the plaintiff was chargeable with notice that he had sustained a compensable injury, and the deposition shows written notice was given within such required time.

Appellees set up the following counterpoint to sustain the judgment:

The court's action in entering judgment for the defendants, Noack and Continental Casualty Company, on the first cause of action as the result of the pretrial hearing was proper, as under the statements and admissions of plaintiff the action could not be maintained because filed more than one year after the failure or refusal to pay compensation.

An examination of appellant's deposition taken March 14, 1960, discloses the following: On the morning of the 1957 accident, finally fixed as November 6, 1957, appellant, a carpenter, age 31, and another carpenter, Ted Townsend, were carrying a heavy beam, intended to be used as a window header, consisting of double two-by-twelves, spiked together and approximately sixteen feet long. As they bent over to lay it down, appellant felt 'like he had pulled something, something had jerked, or something snapped in his lower back.' Also present was the employer's son, J. C. Noack, who, according to the deposition, had no supervisory authority. The employer, Will Noack, was absent the day of the accident, but appellant informed him of it the next day. The deposition does not indicate the nature and extent of this notice except that it was verbal. Appellant took that afternoon off, was examined by Dr. Pitts, who took no X-rays, gave appellant a heat and vibrator treatment, and informed him that he supposed it was a pulled muscle. Appellant went to work the next day and, according to his testimony, missed no time because of the accident until the tile-laying incident in July, 1959.

Appellant had been a carpenter for about twenty years and, until the date of the accident, had suffered no trouble with his back. From that time on the pain would come and go, but it never prevented him from working, although he would have to favor his back and use a heating pad about once every two weeks. Once in awhile, he would complain to Mr. Noack that he was stiff or that his back hurt and Mr. Noack would assure him that he had insurance and that he could see a doctor whenever he was ready to do so. At no time did appellant demand compensation prior to the 1959 incident. Appellant indicated that he had no idea of the seriousness of the injury, assuming that his stiffness was caused by the fact that 'in the carpenter trade, you are continuously lifting or something of that sort.' It was not until some time early in 1959, probably March, that he went to see Dr. Bindel, when he thought he had pulled a muscle. Dr. Bindel took no X-rays, diagnosed it as a pulled muscle, and treated it with heat, suggesting that appellant lay off that day. However, he slept on the heating pad that night, felt better the next morning and went back to work, continuing to work, but stopping by for treatments every few weeks in the late afternoon until some time in May. He then went on vacation for two weeks, during which period he was not bothered by his back.

Two weeks later, on or about July 22, 1959, he started to lay tile in the kitchen of a new house which they were building. He did not remember whether he had laid tile during the period November, 1957, to July, 1959. On July 22, 1959, the day of the accident, he carried some boxes of tile into the kitchen from the garage. The boxes weighed about 45 to 50 pounds each. As the day went on, his back hurt more and more, and at the end of the day he could not straighten up. However, because the house was to be inspected the next day for financing, he went back and finished up the next morning, although he was in great pain.

He was then taken to the hospital in Hobbs, since they could not obtain a doctor in Lovington where the accident occurred. At Hobbs they saw Dr. Fenner and appellant was admitted to a hospital, at which time the first X-rays were taken. Dr. Fenner referred appellant to another doctor in Albuquerque, Dr. Leroy Miller. Both doctors recommended that appellant undergo a milogram test, and perhaps an operation, if the results from the milogram so indicated. Appellant was incapacitated for about two months and incurred medical and hospital expenses which he believed his employer would pay. He now suffers pain, not only in his back but in his neck. He wears a brace, is unable to do anything but light carpentry work, and is actually being carried by his employer. The pain he suffered in July, 1959, was unlike any pain suffered earlier, being much more severe. He has missed at least twelve days (up to the time of the deposition) since getting out of the hospital, in addition to the period of about two months when he was totally incapacitated.

Under point I, appellant contends that the trial court committed error by deciding material issues of fact at the pretrial conference. Appellant points out that the court was acting sua sponte on the basis of the deposition alone, without notice to appellant and without affording him an opportunity to present additional affidavits or argue the motion on its merits. Rules 12 and 56, New Mexico Rules of Civil Procedure. Timely exception was taken to the pretrial order...