Gerrard v. Harvey & Newman Drilling Co.
| Decision Date | 25 April 1955 |
| Docket Number | No. 5852,5852 |
| Parties | V. L. GERRARD, Plaintiff and Appellant, v. HARVEY & NEWMAN DRILLING COMPANY, Employer and Employers Casualty Company, Insurer, Defendants and Appellees. |
| Court | New Mexico Supreme Court |
Brown & Wood, Farmington, for appellant.
Tansey & Brown, Farmington, for appellees.
Plaintiff's action is under the workmen's compensation act. In the complaint it was alleged that plaintiff was injured on August 9, 1953 while working for defendant and in the course of his employment. Plaintiff asserted that at the time of the alleged injury he was a derrick man and was making a pipe connection on the rig; and that the alleged injury caused plaintiff total, permanent disability, necessitating medical expense in excess of seven hundred dollars.
For answer defendant admitted the employment of plaintiff on the date of the alleged injury but denied all other allegations of plaintiff's claim.
Trial was had to a jury. The only form of verdict submitted to the jury consisted of four interrogatories. The court told the jury that if the first interrogatory should be answered in the negative, it would not be necessary to answer the others. The first interrogatory was: 'Do you find from a preponderance of the evidence that the plaintiff is now disabled as the result of an accident which occurred while working for Harvey & Newman Drilling Co. on August 9, 1953?' The second interrogatory asked the percentage of the present disability. The third asked whether disability at the time of trial was due entirely to the accident which occurred while working for defendant. The fourth interrogatory was to be answered only in case the answer to the third was in the negative and in that event the jury was called upon to state what percentage of disability at the time of trial was attributable to the accident of August 9, 1953.
The jury answered the first of the interrogatories in the negative so that it was unnecessary to answer any of the others.
The records show that after the verdict of the jury, being the answer to the first of the four interrogatories, was read, the court asked the attorney for plaintiff if he wished the jury polled, and the answer was in the negative. Thereupon the court excused the jury but before they had left the box, plaintiff's attorney in the presence of defendants' attorney, at the bench and in an undertone requested that the court ask the jury if it was understood that by the verdict the claimant was being allowed no compensation. After defendants' attorney agreed that the court should submit this question to each juror individually, this was done, the court asking 'Is it your understanding that he should not be compensated?'
All jurors except one answered 'Yes, sir'; the other juror answered 'I think so.'
Judgment was entered for defendant and plaintiff appealed.
Plaintiff's testimony was to the effect that at the time of his injury the breakout cathead clutch of the oil rig on which he was working stuck, with the result that some tongs were jerked loose from a pipe and struck claimant across the back. Plaintiff's brother, working for the defendants at the same time and place, gave testimony supporting that of the claimant. A witness for defendant testified to the effect that the tongs were jerked loose but that he did not see them strike claimant or any other person though he was in a position to see whether anyone was struck. The same witness for defendant testified further that when the tongs came loose claimant stepped off the platform rather quickly and then stepped back.
Each of the parties had an orthopedic surgeon for a witness.
There was little difference in the opinions of these doctors as to the fact that plaintiff had been injured at some time. Neither of them could approximate the date of the injury which it was said must have occurred more than three months before the examination of either. The difference in their opinions was related almost entirely to treatment which might relieve plaintiff's condition.
The doctors agreed that plaintiff should not do heavy work in oil fields--that is that he should not do the kind of work he was doing at the time he claimed that he was injured.
Plaintiff's assignments of error raise no question except as to the giving of two instructions by the court, the refusal of the court to give one instruction submitted by plaintiff and the assertion that the verdict is not supported by substantial evidence.
The court gave the jury instruction numbered 5 which reads as follows (Tr. 10):
The interrogatory answered by the jury in the negative upon which the judgment for defendant is based reads as follows (Tr. 22):
To instruction numbered 5 plaintiff, by his attorney, took exception as follows (Tr. 116-17):
'In behalf of plaintiff I object to Instruction No. 5 and more particularly to the language reading as follows: 'Total disability is presumed to have occurred when both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, have been lost.' for the reason that there are no facts in this case to support such an instruction, and for the further reason that such language may be construed by the members of the jury and the plaintiff be prejudiced thereby.'
The objection should have been sufficient to call to the attention of the court that it was about to fall into error and is a proper basis for the consideration in this Court, under proper assignment of error, of the propriety of the given instruction.
By assignment of error, plaintiff attacks instruction numbered 5 given by the court, as introducing a false issue in the case by including therein the sentence previously quoted relating to the loss of hands, arms, feet or eyes.
It is not quite accurate to say that the instruction raised a false issue because there was no basis for any decision about loss of hands, arms, feet or eyes. An issue has been defined by this Court in Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 638, 142 A.L.R. 1237, as follows:
In the case of Majors v. Kohlhousen, 33 N.M. 529, 270 P. 896, there is clearly the submission by instruction of a false issue to the jury. In that case plaintiff pleaded a contract of employment to find a purchaser for certain real estate, alleging that he found the purchaser and that the property was accordingly sold and that he had earned his commission.
The court gave the jury an instruction in substance that if it should be found from the evidence that plaintiff was engaged in the real estate business and that defendant was offering the real estate for sale and that she employed the plaintiff to aid and assist her in effecting a sale either by previous authority or acceptance of plaintiff's agency and the adoption of his acts and that plaintiff did faithfully occupy his time and render his services in so aiding defendant to effect a sale, then plaintiff would be entitled to recover a reasonable remuneration. To this instruction defendant objected at the trial and after verdict for plaintiff, defendant appealed. One point only was considered in this Court. The holding was that the instruction just mentioned submitted to the jury a false issue because plaintiff's right to recover, as alleged in the pleadings, rested upon his finding the purchaser and not upon assistance he may have rendered defendant in selling to some purchaser found in some other manner. The judgment of the lower court was reversed.
It cannot be said that the scheduled injuries mentioned in instruction numbered 5 are merely illustrative for the reason that they do not illustrate anything. The instruction makes no comparison between these injuries and any other kind of injury that might be total and permanent, and no other of the instructions makes any such comparison. The instruction is in no way applied to the...
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