Cromer v. J. W. Jones Const. Co.

• Decision Date: 03 May 1968
• Docket Number: No. 63,63
• Citation: 1968 NMCA 27,79 N.M. 179,441 P.2d 219
• Parties: Ruben D. CROMER, Plaintiff-Appellant, v. J. W. JONES CONSTRUCTION COMPANY, Inc., and Mountain States Mutual Casualty Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 219

441 P.2d 219

79 N.M. 179

Ruben D. CROMER, Plaintiff-Appellant, v. J. W. JONES CONSTRUCTION COMPANY, Inc., and Mountain States Mutual Casualty Company, Defendants-Appellees.

No. 63.

Court of Appeals of New Mexico.

May 3, 1968.

Gerald Goodman, Duran & Goodman, Albuquerque, for appellant

John R. Cooney, Leland S. Sedberry, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellee.

OPINION

SPIESS, Chief Judge.

Ruben D. Cromer has appealed from orders denying certain claimed benefits under the Workmen's Compensation Act and the dismissal of his complaint.

The defendant Mountain States Mutual Casualty Company has cross appealed from an order requiring that it furnish plaintiff an artificial arm and likewise awarding attorney's fees to plaintiff for the presentation of his claim for the artificial member.

By the complaint and through various motions plaintiff sought (1) compensation for total disability and attorney's fees; (2) an artificial arm and training in its use; (3) benefits for permanent disfigurement about the head and face, and (4) summary judgment.

It appears to be undisputed that on or about the 15th of August, 1964, plaintiff sustained compensable injuries of a serious nature which resulted in the amputation of his left arm and likewise included certain injuries to his head and face. As a result of these injuries defendant paid compensation installments for a period of time and likewise paid a substantial sum for medical expenses. The complaint was filed August 29, 1966. The last semi-monthly installment of compensation paid plaintiff prior to the filing of the complaint was on or about April 11, 1966.

After suit had been filed defendant appeared and moved the court to dismiss the complaint 'for failure to state a cause of action on the ground that the action is premature and in the alternative * * * for summary judgment'.

Before defendant's motion to dismiss was acted upon by the trial court it (1) granted a motion requiring defendant to furnish plaintiff an artificial arm and awarding attorney's fees for presentation of the motion relating to the artificial arm; (2) denied a motion to require defendant to provide training in the use of the artificial arm; (3) denied plaintiff's motion seeking benefits on account of claimed permanent disfigurement about his head and face; and (4) denied plaintiff's motion for summary judgment.

Review is sought of (1) the order dismissing plaintiff's complaint; (2) the denial of plaintiff's motion to require defendant to provide training in the use of the artificial arm; (3) the denial of the motion seeking benefits on account of permanent disfigurement, and (4) the denial of plaintiff's motion for summary judgment.

Defendant's cross appeal as we have stated is from the order requiring it to furnish an artificial arm and awarding attorney's fees.

The order dismissing the complaint, in our opinion, is not sustainable. The grounds of dismissal as stated in the order are 'the complaint is moot and premature'. The order of dismissal was based solely upon the pleadings and affidavits filed in the cause and will be treated as a summary judgment. Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964); Gonzales v. Gackle Drilling Co., 70 N.M. 131, 371 P.2d 605 (1962).

Considering first the ground of mootness it appears from an affidavit of defendant's claims manager and an exhibit attached to the affidavit that the defendant had paid plaintiff all installments of compensation to which he was entitled through April 11, 1966. Payments were then stopped for the reason, as stated, that plaintiff on or about April 8, 1966, orally agreed to accept a lump-sum settlement which defendant had proposed. After the suit had been filed all installment payments of compensation for the period from April 7, 1966, to the filing of the complaint were paid.

As we have stated, relief sought by the complaint included the payment of compensation.

The conclusion that 'the complaint is moot' must have been based upon the fact that after the complaint had been filed all installments of compensation then in arrears had been paid to plaintiff. The payment or resumption of payment of the semi-monthly installments of compensation would render the case moot only as to defendant's liability for such compensation. There remained, however, an undetermined issue involving plaintiff's right to an award of attorney's fees which prevented the entire proceedings from becoming moot. Mootness consequently was not a proper basis for the dismissal of the complaint. See City of Albuquerque v. Chapman,77 N.M. 86, 419 P.2d 460 (1966).

The conclusion that the suit was premature was apparently predicated either on the ground that a settlement had been effected between the parties, or on the ground that plaintiff was estopped from filing suit under the facts without first giving notice of his intention to so do.

In reaching the conclusion that the complaint was premature the court had before it the affidavit of defendant's claims manager, and likewise affidavits of plaintiff and his wife. The claims manager's affidavit relating to the settlement is as follows:

'On April 8, 1966, Mr. Cromer, plaintiff herein, notified this office that he was willing to accept settlement in the total amount of $10,000.00. Following his agreement to accept $10,000.00 in settlement a letter dated April 11, 1966, * * * was sent to Mr. Cromer together with a Release. Mr. Cromer was again written on May 10, 1966, about his failure to return the Release * * * Mr. Cromer was again written on August 31, 1966, explaining the fact that his weekly benefits had been stopped pursuant to the agreed settlement. * * *'

It appears that compensation payments were brought up to date as of about August 31, 1966, a date subsequent to the filing of the complaint, as we have stated.

It appears to us that the court considered only the statement in the claims manager's affidavit in concluding that the suit was premature. Plaintiff's affidavit, however, was before the court in which he stated that during April, 1966, a representative of defendant, a Mr. Hillon, visited plaintiff's home and offered him $10,000.00 in full settlement of his claim. Further, that he (plaintiff) would have two weeks time in which to make up his mind. The following is then stated in the affidavit.

'6. That I told Mr. Hillon that I would not consider settling for Ten Thousand Dollars ($10,000.00) unless I was released by my doctors. Mr. Hillon said that he had called my doctors and they had released me.

'7. That I subsequently (sic) determined that Dr. Coffey had not released me.

'8. That after Mr. Hillon's last visit to my home in April, 1966, my Workmen's Compensation payments of Thirty-Eight Dollars ($38.00) per week ceased.

'9. That I never heard from Mountain States Mutual Casualty Company again in person even though I called their office several times and requested that Mr. Welch or Mr. Hillon call me.

'10. That from April 11, 1966, through August 31, 1966, I received no compensation payments from Mountain States Mutual Casualty Company.'

Plaintiff's wife, by her affidavit, corroborated the statements made by plaintiff in his affidavit. Considering all of the affidavits it seems clear that an issue of fact existed as to whether a settlement agreement was ever effected between the parties. As a result there was disagreement as to whether defendant had a duty to pay semi-monthly installments of compensation at the time the suit was filed. The affidavits likewise disclose an issue of fact as to whether plaintiff misled defendant into believing that the claim was settled resulting, of course, in a disagreement as to whether plaintiff was estopped from suing. In view of the presence of material issues of fact the entry of summary judgment was improper. Reed v. Fish Engineering Corporation,74 N.M. 45, 390 P.2d 283 (1964); Villanueva v. Nowlin, 77 N.M. 174, 420 P.2d 764 (1966); Ute Park Summer Homes Assoc. v. Maxwell Land Grant Co., 77 N.M. 730, 427 P.2d 249 (1967); Great Western Constr. Co. v. Ribble, 77 N.M. 725, 427 P.2d 246 (1967).

Defendant has suggested that the findings of fact made by the trial court upon which the case was dismissed are binding for the reason that plaintiff neither requested findings nor did he attack those made by the court. In support defendant cites Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966); Mirabal v. Robert E. McKee and Mountain States Mutual Casualty Co., 74 N.M. 455, 394 P.2d 851 (1964); and Brown v. Arapahoe Drilling Co. and Aetna Casualty and Surety Co., 70 N.M. 99, 370 P.2d 816 (1962). These cases, however, do not involve summary judgment. A summary judgment presupposes that there are no triable issues of fact. Consequently, findings of fact are not required. Federal Building Service v. Mountain States Tel. & Tel. Co., 76 N.M. 524, 417 P.2d 24 (1966), Lindsey v. Leavy, 149 F.2d 899 (9th Cir. 1945); Filson v. Fountain, 84 U.S.App.D.C. 46, 171 F.2d 999 (1948), reversed on other grounds, Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971.

As we have indicated three issues are presented relating to the artificial arm which the trial court required defendant to furnish. We will first consider defendant's cross appeal from the order requiring it to furnish the arm and awarding attorney's fees. A determination of this issue involves an interpretation of Section 3 of Chapter 269, Laws of 1963. This statute was effective at the time of the accident and consequently applicable to this case. The section reads:

'Section 3. Section 59--10--19.1 New Mexico Statutes Annotated, 1953 Compilation (being Laws 1959, Chapter 67, Section 27) is amended to read:

"59--10--19.1 MEDICAL AND RELATED BENEFITS--ARTIFICAL (sic) MEMBERS.--

'A. After injury, and continuing as long as medical or surgical attention is reasonably necessary, not to exceed a period of five years from the date of the workman's...