Day v. Penitentiary of New Mexico

• Decision Date: 14 June 1954
• Docket Number: No. 5760,5760
• Citation: 58 N.M. 391,1954 NMSC 64,271 P.2d 831
• Parties: DAY v. PENITENTIARY OF NEW MEXICO.
• Court: New Mexico Supreme Court

Page 831

271 P.2d 831

58 N.M. 391

DAY v. PENITENTIARY OF NEW MEXICO.

No. 5760.

Supreme Court of New Mexico.

June 14, 1954.

H. A. Kiker and Henry A. Kiker, Jr., Santa Fe, for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley, C. C. McCulloh, Asst. Attys. Gen., for appellee.

COMPTON, Justice.

Appellant, claimant below, brought this action against The Penitentiary of New Mexico for compensation under the Workmen's Compensation Act and from a judgment dismissing the complaint, he appeals. The parties stipulated as to the facts found by the court, leaving for determination a single legal question, whether the state has consented to the suit.

On November 20, 1950, while claimant was performing guard duty at the Penitentiary of New Mexico, a riot occurred among the prisoners during which the prisoners assaulted claimant, seriously injuring him. As a result of his injuries claimant was disabled to the extent of 60% of total disability. Appellee took no step to comply with the Act, hence there was no insurance carrier. Nor did appellee file a notice in writing of its election not to accept the provisions of the Act. Upon the foregoing fact, the court concluded that it was without jurisdiction in the matter since the action was one against the State of New Mexico to which the state had not consented, and dismissed the proceedings.

Appellant concedes the state cannot be sued without its consent, but contends that Sec. 45-101, 1941 Comp., and the Workmen's Compensation Statutes, Sec. 57-901 to Sec. 57-931, 1941 Comp., taken together, constitute a consent by the state to be sued in a Workmen's Compensation proceeding involving the state penitentiary. This argument is without force as the statutes clearly are unrelated. The former deals with corporate powers, while the latter statutes are sui generis and exclusive. The rights and remedies provided thereby are in derogation of the common law and consent must be found in the Act itself. Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690; Vigil v. Penitentiary of New Mexico, 52 N.M. 224, 195 P.2d 1014; Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044; Guthrie v. Threlkeld Co., 52 N.M. 93, 192 P.2d 307; Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000; Sorenson v. Six Companies, Inc., 53 Ariz. 83, 85 P.2d 980; Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656.

The penitentiary was given corporate powers by Sec. 45-101, 1941 Comp., which reads:

'The general government and management of the penitentiary shall be vested in five (5) commissioners, who shall be appointed by the governor as in the constitution provided, and the governor shall have power at any time to remove any of said commissioners and appoint their successors. Said commissioners, and their successors in office, shall constitute a body corporate under the name and style of 'The Penitentiary of New Mexico,' and said corporation shall have the right as such to sue and be sued, to contract and be contracted with, to buy, own, hold, manage, lease, sell and otherwise handle and dispose of all such real, personal and mixed property as in the judgment of the commissioners may be necessary and proper for the operation and management of the penitentiary, including the right to acquire, maintain and operate any necessary farm, or farms, at such places in this state as the commissioners shall designate.' (Emphasis ours.)

The Workmen's Compensation Act, Sec. 57-902, enumerates the employers who do or may come within the provision of the Act, 'the state and each county, city, town, school district, drainage, irrigation or conservancy district, and public institution and administrative board thereof * * *' and by Sec. 57-910, all guards employed by the penitentiary are deemed to be within the provisions of the Act. By Sec. 57-904 of the Act, every employer employing as many as four or more persons, is conclusively presumed to have accepted the provisions of the Act unless he has filed with the clerk of the district court a notice in writing that he elects not to accept its provisions. But we do not find in the Act express consent by the state to be sued, absent...