Churchill v. City of Albuquerque

• Decision Date: 11 December 1959
• Docket Number: No. 6545,6545
• Citation: 66 N.M. 325,347 P.2d 752,1959 NMSC 101
• Parties: David N. CHURCHILL, Claimant, Plaintiff-Appellee and Cross-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellant and Cross-Appellee.
• Court: New Mexico Supreme Court

Page 752

347 P.2d 752

66 N.M. 325

David N. CHURCHILL, Claimant, Plaintiff-Appellee and Cross-Appellant, v. CITY OF ALBUQUERQUE, Defendant-Appellant and Cross-Appellee.

No. 6545.

Supreme Court of New Mexico.

Dec. 11, 1959.

Frank Horan, Malcolm W. deVesty, Paul F. Henderson, Jr., James L. Parmelee, Jr., Albuquerque, for appellant and cross-appellee.

Schall & Sceresse, Albuquerque, for appellee and cross-appellant.

CARMODY, Justice.

This is an appeal and cross-appeal from a supplemental order in a workmen's compensation case, increasing the term of disability but at the same time refusing to increase the percentage of compensation.

The case was originally tried before a jury which found on October 4, 1955, that the claimant was partially disabled in the amount of 50% and that his disability would continue for a period of 250 weeks.

No further proceedings were taken until December 5, 1957, when a motion was filed by the claimant to re-open the judgment on the grounds (1) that by reason of action of the defendant, claimant's disability had been increased to 100%, and (2) that claimant's disability would continue beyond the 250 weeks contemplated.

As to this motion, originally, the district court denied claimant's request to enlarge the term of disability but set the case for rehearing on the percentage of disability. Thereafter, the court heard testimony, and as a final result entered its order enlarging the term from 250 weeks to 550 weeks, but leaving the percentage of disability as it had been theretofore found.

The defendant attacks this order on two grounds, (1) that the court retained no jurisdiction to amend or correct the verdict, and (2) that any adjudication as to the enlargement of the term is premature.

The first ground above stated is without merit. There is no longer any question in this jurisdiction but that a judgment such as here involved is not final until the full statutory period of 550 weeks has elapsed. In La Rue v. Johnson, 1943, 47 N.M. 260, 141 P.2d 321, 326, we said:

'We are of the opinion that, as the right later to contest the question of a continuance of the disability is statutory (citation), it would exist even though a judgment is absolute in form.'

In Segura v. Jack Adams General Contractor, 1958, 64 N.M. 413, 329 P.2d 432, 433, the court discussed this question and stated as follows:

In view of provisions of the applicable statute the ordinary rules of res judicata cannot apply to a judgment rendered on the merits after trial. In fact, in such a case except for loss of a specific member of the body there is no final judgment as it is generally understood short of 550 weeks when either party may come into court and have a hearing on a decrease or increase of disability and have a new judgment rendered in accordance with new findings.'

There can be no logical distinction drawn between the jurisdiction of the court in amending the amount of disability and jurisdiction as to the length of the term for which disability is to be received.

The Segura case does not directly dispose of the second contention of the defendant, because there application was made for the enlargement of the term on the very day that the original judgment would have expired. The defendant had been granted disability by a jury verdict for a period of six months, and the trial court, on motion filed when the six months elapsed, extended the term to the full statutory period of 550 weeks. Our opinion sustained the action of the trial judge. Here, application was made approximately two and a half years before the original limitation had expired.

However, when we consider that the right to contest the continuance of disability is for 550 weeks, La Rue v. Johnson, supra, and that there is no final judgment, in the usual sense, short of the maximum period, Segura v. Jack Adams, supra, then the 250-week limitation is surplusage. This is particularly true inasmuch as the statute (Sec. 59-10-25, N.M.S.A.1953 Comp.) permits the re-opening of an award at six-month intervals. Therefore, upon proof of permanency of injury, the court is justified in extending the term to the full statutory period. Such proof was in evidence before the trial court when claimant's doctor testified by affidavit, 'This disability will continue indefinitely. * * *'

We are faced with the practicalities of the situation and it now appears that the 250-week period will expire in a little more than six months. To require, at that time, another hearing as to the length of the term, in view of the present order, would be of little purpose. Neither of the parties are prejudiced and both retain the prerogative to re-open in conformity with the statute at any time within the interval provided for by law. The defendant's right to seek diminution or termination is preserved, as is claimant's privilege to apply for an increase or aggravation of disability. We will therefore hold that in view of the peculiar circumstances of this particular case, that the adjudication as to the enlargement of the term was not premature.

With respect to claimant's cross-appeal, which relates to the refusal of the trial court to increase claimant's disability from 50% to 100% retroactive to the date of the termination of his employment by the defendant, a completely different problem faces us. Paraphrasing the language of claimant's attorney at the commencement of the hearing, claimant's theory was this: That it was stipulated that claimant's disability remained at 50% insofar as his physical functions were concerned; however, that this 50% disability was the cause of claimant's termination of employment as a police officer, and that therefore it had the...