Davis v. Meadors-Cherry Co.

• Decision Date: 16 October 1958
• Docket Number: No. 6406,MEADORS-CHERRY,6406
• Parties: C. C. DAVIS, Plaintiff-Appellant, v.COMPANY, Employer-Appellee, and Anchor Casualty Company, Insurer-Appellee.
• Court: New Mexico Supreme Court

Page 523

331 P.2d 523

65 N.M. 21

C. C. DAVIS, Plaintiff-Appellant, v. MEADORS-CHERRY COMPANY, Employer-Appellee, and Anchor Casualty Company, Insurer-Appellee.

No. 6406.

Supreme Court of New Mexico.

Oct. 16, 1958.

Rehearing Denied Nov. 20, 1958.

Dee C. Blythe, Clovis, for appellant.

Hartley, Buzzard & Patton, Clovis, Gilbert, White & Gilbert, Santa Fe, for appellees.

McGHEE, Justice.

The plaintiff (appellant) seeks the reversal of an order denying his application to reopen his compensation claim in his effort to secure additional payments for claimed total disability.

Some time following his injury he entered into a compromise settlement for a lump sum which paid him in full for amounts which had accumulated to date of settlement but apparently included nothing for future disability.

The defendants (appellees) opposed the reopening but their objections were overruled and they appealed to this Court. A majority held the order was not appealable in 63 N.M. 285, 317 P.2d 901, and the appeal was dismissed. The defendants then asked for a reconsideration of the order granting the plaintiff permission to reopen, and upon further consideration their objections were sustained, the trial court holding it would be acting in excess of its jurisdiction if it reopened the case. This appeal followed.

Following the agreement for settlement a claim for compensation was filed by the plaintiff on October 1, 1951. The defendants immediately answered stating they had fully settled with the plaintiff for the sum of $630 and the additional sum of $691.97 for medical, hospital and doctor bills of the plaintiff. Attached to the answer as an exhibit was a release and discharge from all manner of claims, damages, actions and rights of action the workman ever had, has now or may have under the common law, statutory liability or Workmen's Compensation Act of New Mexico, for or on account of or by reason of any damage, loss, injury, suffering or disfigurement which theretofore has been, which is now, or which hereafter may be a consequence of any accident suffered on or about the 4th of January, 1951.

There was also filed in the case a stipulation signed by the parties and their attorneys, as follows:

'It is stipulated and agreed by and between the plaintiff, C. C. Davis, and the defendants, that plaintiff will accept the sum of Thirteen Hundred Twenty-one and 91/100 ($1,321.97) Dollars in full settlement of all of his claims against the defendants on account of the injuries described in the claim filed in this cause; that the defendants have agreed to pay said sum to plaintiff, including all medical and hospitalization incurred to date. All further expenses shall be paid by plaintiff.'

Judgment was thereupon signed and entered approving the release and settlement, and discharging and releasing the defendants from any and all further liability to claimant by reason of the accident and injury described in the claim for compensation filed in the case.

The motion to reopen filed by the plaintiff on July 12, 1956, reads:

'Comes now the plaintiff, C. C. Davis, and moves the Court to reopen the above-entitled claim for workmen's compensation, and as grounds for his motion says:

1. That the award heretofore made in this case included nothing for plaintiff's permanent partial disability.

2. That prior to the filing of plaintiff's claim herein he underwent spinal surgery to correct the injuries complained of; that since the entry of the judgment herein further surgery has been necessary; that the original surgery was not a success, and the subsequent surgery was necessary to correct the original surgery; that at the time of the entry of the judgment herein all parties herein believed that said surgery was successful, and that the complications which later necessitated additional surgery were not and could not ordinarily have been anticipated and therefore were in the nature of a latent injury.

3. That plaintiff is now totally and permanently disabled as a result of his original injury and the resulting surgery.

4. That plaintiff has been unable to do anything but light work since the entry of the judgment herein and has for all practical purposes been unable to work since then; that he was hospitalized from June 7, 1956, to June 25, 1956, and since then has had to wear a spinal brace; that he has incurred expenses for doctor, hospital and orthopedic appliances in excess of $800.00 since June 7, 1956, and will incur additional expenses of a large but undetermined amount in the future for the treatment of said injuries, which plaintiff estimates at $5,000.00.

WHEREFORE, plaintiff prays that his claim for workmen's compensation be reopened; that an award be made to him for total and permanent disability; that defendants be required to pay his doctor and hospital bills incurred since the entry of the judgment herein; that he be awarded an additional sum sufficient to take care of future doctor and hospital bills resulting from the injuries complained of, in the amount of $5,000.00; and that he have judgment for other benefits provided by the Workmen's Compensation Act, including attorney fees.'

The defendants then filed a motion to dismiss which reads:

'Comes now the Employer and Insurer and move the Court to dismiss Claimant's motion to reopen for the reason that:

'1. The motion is not timely under Rule 60(b) of the New Mexico Rules of Civil Procedure.

'2. The claim is not timely under the Workmen's Compensation Act of New Mexico.

'3. The...