Christensen v. Dysart

• Decision Date: 22 January 1938
• Docket Number: No. 4317.,4317.
• Parties: CHRISTENSENv.DYSART et al.
• Court: New Mexico Supreme Court

42 N.M. 107

76 P.2d 1

CHRISTENSEN

v.DYSART et al.

No. 4317.

Supreme Court of New Mexico.

Jan. 22, 1938.Rehearing Denied Feb. 16, 1938.

Appeal from District Court, McKinley County; James B. McGhee, Judge.

Proceedings under the Workmen's Compensation Act by Mary T. Chistensen against S. Dysart and the New Mexico Oil Properties, to recover compensation for death of plaintiff's husband, which occurred when he fell from a platform while roofing a house. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

In proceedings to recover compensation for death of employee, where contract of employment, which stated that the act was not to apply and substituted a method of less compensation, was invalid as against public policy, employer was bound by conclusive presumption of statute that the act is to apply in absence of express statement in writing that the parties are not to be bound. Comp.St.1929, § 156-101 et seq.; § 156-104.

M. J. McGuinness, Joseph L. Dailey, and K. Gill Shaffer, all of Albuquerque, and M. G. Macneil, of Los Angeles, Cal., for appellants.

Harris K. Lyle, of Gallup, for appellee.

HUDSPETH, Chief Justice.

While in the course of his employment by defendant-appellant here-as carpenter, Chistian T. Christensen, the husband of plaintiff, slumped into a sitting position on the platform on which he had been standing while putting shiplap on a low roof, fell from the platform to the ground, receiving as a result of the fall two broken ribs, one of which pierced a lung, and a bruise on the head. He died in a few moments-whether before or after receiving the blow on the head and the injury to the ribs being one of the disputed facts. He had been complaining of heart trouble, and six weeks to two months before his death he had consulted a physician who diagnosed his trouble as coronary thrombosis, and advised him to remain in bed until he could get further medical advice. Appellant maintains that Christensen died of heart disease and that there is no substantial evidence to support the finding of the court that the injuries sustained in the fall caused the death. However, the first point argued is that the court erred in refusing to admit in evidence a contract between appellant as employer and Christensen as employee tendered for the purpose of showing that these parties had agreed not to be bound by the Workmen's Compensation Act, Comp. St.1929, § 156-101 et seq., and providing for a method of compensation agreed upon by the parties. Appellant states the proposition as follows:

“Because appellant and the deceased were operating under a written contract expressly agreeing not to be bound by the provisions of the New Mexico Workmen's Compensation Act, and making provision for certain employee benefits.”

The maximum compensation under the contract was limited to one year. Appellant attempted to substitute a system of payments to the employee in case of his injury for those fixed by the Workmen's Compensation law. And while the contract contained a declaration that the provisions of the Workmen's Compensation Act, chapter 156, N.M.Comp.St.1929 and amendments thereof, “shall not apply to the relation of employer and employee hereby created,” appellant's learned counsel conceded at the oral argument that that portion of the contract which attempts to set up a substitute scheme of compensation in lieu of the provisions of the Workmen's Compensation Act is void as against public policy. On the other hand, appellee admits that the New Mexico law gives parties an alternative between the compensation act and the common law, with the deprivation of three defenses formerly open to an employer. However, she maintains that the court properly excluded the contract because it is indivisible and unenforceable since under it the employee gave up both rights and the consideration was the employer's promise to pay a greatly reduced benefit. The consideration for Christensen to relinquish all his remedy was a single promise which in its entirety is conceded to be illegal. The section of the statute involved is section 156-104, N.M.Comp.St.1929, since repealed, see chapter 92, § 19, Laws 1937, the material part of which reads as follows:

“Every contract of hiring, verbal or written, made subsequent to the time this act takes effect, and every such contract made previous thereto and continued thereafter, shall be presumed to have been so made, or so continued, as the case may be, with reference to the provisions of this act, and unless there be as a part of such contract so made or continued an express statement in writing prior to any accident, either in the contract itself, or by written notice from either party to the other in substance that the provisions of this act are not intended to apply, then it shall be conclusively presumed that the parties have accepted the provisions hereof and have agreed to be bound thereby and were working thereunder at the time of such injury.”

[1][2] We have been referred to the English Employers' Liability Act which authorizes employers and employees by contract to substitute for the provisions of the compensation act, under certain conditions, another scheme of compensation or insurance. This is often referred to as “contracting out.” In the case of Moss v. Great Eastern Railway Co., 2 K.B. 274, 2 B.W.C.C. 480, a scheme of contracting out was under consideration. Fletcher Molten, L. J., said:

“*** That does not mean such portion of the arrangement as the parties elect to call the scheme; it must be the whole scheme. ***”

In Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903, 904, we said:

“It may well be kept in mind that the theory upon which the Workmen's Compensation Acts of the several states were adopted was to substitute a more humanitarian and economical system of compensation for injured workmen or their dependents in case of their death; to provide a speedy and inexpensive method by which such compensation might be made to such employees or those dependent upon them which is more in harmony with modern methods of industry than the common-law liability for torts, which usually involves long, tedious, and expensive litigation, and often produced ill feeling between employer and employee. *** With these elevating and progressive considerations which prompted the passage of this class of legislation in mind, we think a liberal construction in favor of a claimant under its terms should be favored, as the theory of the legislation is compensation, not the denial of it.”

In Hughey v. Ware, 34 N.M. 29, 276 P. 27, 29, we said:

“It is the public policy of this state that, for such accident, compensation shall be made in a certain amount, to secure the injured employee against want, and to avoid his becoming a public charge.”

While the effects on the public and the employer were given consideration, the main purpose of this legislation was to afford compensation for injuries and protection to employees engaged in hazardous occupations and to provide benefits to their dependents in case of death. It is not in keeping with the public policy of the state to countenance overreaching on the part of an employer in making contracts with his employees which deprive them of part of the compensation to which they would be entitled under the terms of the Workmen's Compensation Act. The only alternative is that fixed by statute, i. e., common-law rights and remedies within the limitations fixed by section 156-106, N.M.Comp. St.1929. Since the contract tendered is invalid and inseparable and clearly offends against the public policy of the state, we are constrained to hold that the court properly excluded it. It follows that the parties were bound by the conclusive presumption provided by the statute quoted above that they were subject to the Workmen's Compensation Act.

[3][4][5] The second point relied upon for reversal is stated as follows:

“If appellant and the deceased Christensen were operating under the terms of the New Mexico Workmen's Compensation Act, then the appellee cannot recover, for the reason, among others, that the deceased died from natural causes and not from compensable injuries.”

Appellant cites Pierce et al. v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017; Meldrum v. Southard Feed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75; McNamara v. Industrial Accident Comm., 130 Cal.App. 284, 20 P.2d 53; Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445, 164 N.W. 537; 71 C.J. § 361, p. 605, and other authorities. These authorities seem to support appellant's theory that one who dies from heart disease cannot recover. In answering appellee's argument that the deceased died from injuries resulting from the fall, as found by the court, and that such injuries were occasioned by accident arising out of and in the course of Christensen's employment, the appellant's brief states:

“The argument overlooks the fact that the fall and the subsequent injuries sustained were caused by the heart attack and not by accident arising out of Christensen's employment.”

While there is authority for this statement, the better rule appears to be against appellant's position. The Supreme Court of Ohio in Industrial Commission v. Nelson, 127 Ohio St. 41, 186 N.E. 735, 737, says:

“In a case before the Supreme Court of Illinois, Rockford Hotel Co. v. Industrial Commission, 300 Ill. 87, 132 N.E. 759, 19 A.L.R. 80,...