Gonzales v. Sharp & Fellows Contracting Co.

• Decision Date: 20 March 1944
• Docket Number: No. 4808.,4808.
• Citation: 153 P.2d 676,48 N.M. 528
• Court: New Mexico Supreme Court
• Parties: GONZALESv.SHARP & FELLOWS CONTRACTING CO. et al.

48 N.M. 528

153 P.2d 676

GONZALES

v.SHARP & FELLOWS CONTRACTING CO. et al.

No. 4808.

Supreme Court of New Mexico.

March 20, 1944.On Rehearing Nov. 17, 1944.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Proceeding under the Workmen's Compensation Act by Bessie A. Gonzales, claimant, to recover compensation for the death of her husband, employee, opposed by the Sharp & Fellows Contracting Company, employer, and the Zurich General Accident & Liability Insurance Company, insurer. From a judgment awarding claimant compensation, the employer and insurer appeal.

Reversed and remanded for a new trial on condition, or affirmed if condition be not complied with.

Where employer and workmen's compensation insurer expressed willingness to pay compensation to deceased employee's widow for unrelapsed portion of 300 weeks' compensation period from date of employee's injuries, the widow, moving for allowance of $500 attorney's fees for services in Supreme Court on appeal from judgment awarding her compensation, was allowed only $350 attorney's fees.

Joseph L. Smith and Mechem & Hannett, all of Albuquerque, for appellants.

Arthur Livingston and Carl H. Gilbert, both of Santa Fe, for appellee.

SADLER, Chief Justice.

This is an appeal from a judgment of the district court of Santa Fe County awarding compensation to the appellee as plaintiff below for the benefit of herself and her four minor children following the death of her husband in an industrial accident. The employer and its insurer, complaining of the judgment against them, prosecute this appeal. The facts were found by the court, apparently from the pleadings, and appear not to be in dispute.

While working for the employer near Cerrillos, in Santa Fe County, on July 10, 1939, the husband of plaintiff suffered an accidental injury arising out of and in the course of his employment. As a result of the injuries so received the husband immediately became totally disabled and so continued until the time of his death on July 8, 1943. He died as a result of the injuries received in the accident. His average weekly earnings at the time of his injury were thirty dollars. The employer paid him compensation at the rate of eighteen dollars per week from the date of his injury to the time of his death. It also paid to plaintiff the statutory sum of one hundred fifty dollars as funeral expenses following the decedent's death.

Within a short time after decedent's death, the plaintiff, as his widow, asked and was granted leave by the District Court of Santa Fe County to file a claim on behalf of herself and four minor children as beneficiaries entitled to workmen's compensation. The leave was granted and the claim filed. In setting forth her claim the plaintiff admitted payments by the employer during decedent's lifetime running from the date of the injury to the date of his death. She also admitted payment subsequent to his death of one hundred fifty dollars for funeral expenses. She alleged her understanding that the employer and insurer would continue to pay to her and the children the sum of eighteen dollars per week for the period of time over which they admitted liability. Her petition went on to say that a disagreement had arisen between her and the defendants as to the period of time for which such payments should continue.

The claimant then prayed for alternative relief. She asked either (1) that, pursuant to the provisions of 1941 Comp., § 57-913, the defendants be ordered to continue payments for the unexpired portion of the five hundred fifty weeks for which her husband would have received compensation had he continued to live; or (2), in the alternative and evidently invoking 1941 Comp. § 57-918(a) (2), that the defendants be ordered to pay to the plaintiff for her own benefit and that of her four minor children compensation at the statutory rate for the period of three hundred weeks from the date of the death of decedent.

The defendants answered, denying altogether the plaintiff's right to recover compensation under the first alternative presented by her claim and, further answering, they denied that they were under any other liability than that imposed by the second alternative, to-wit: the payment of eighteen dollars per week for a period of three hundred weeks but running from the date of the injury to decedent rather than from the date of his death. They expressed their willingness and formally offered to continue payments for three hundred weeks from the date of injury to the deceased workman.

The matter came on for trial upon the petition and answer. Apparently the court made its findings of fact from admissions in the pleadings. The facts found are as follows:

“1. That Cayetano L. Gonzales received an injury suffered by accident arising out of and in the course of his employment while working for the defendant employer on the 10th day of July, 1939, near Cerrillos, Santa Fe County, New Mexico, as a jack hammer operator engaged in cutting rock on a hillside, at which time his average weekly earnings were thirty dollars ($30.00).

“2. That as a result of said accident the said Cayetano L. Gonzales became totally disabled and defendant insurer paid said injured workman the sum of eighteen dollars ($18.00) per week from the date of the injury until the date of his death under the provisions of the Workmen's Compensation Act of New Mexico.

“3. That the said Cayetano L. Gonzales died on the 8th day of July, 1943, as a result of said injury and accident.

“4. That at the time of his death the said Cayetano L. Gonzales left as dependents the plaintiff, his widow, and four (4) minor children.

“5. That the defendant insurer has paid plaintiff the sum of one hundred and fifty dollars ($150.00) in full payment of funeral expenses as provided by the said Act.

“6. That the defendant employer and defendant insurer have been paying and will continue to pay to plaintiff the sum of eighteen dollars ($18.00) per week for a period of time beginning at the date of death, to-wit: July 8th, 1943, and ending at the expiration of three hundred (300) weeks from the date of injury, to-wit: July 10th, 1939.

“7. That under the pleadings and by oral stipulation of counsel there are no issues of fact and it is agreed that plaintiff is entitled to receive for herself and the minor children, dependents of Cayetano L. Gonzales, deceased, the sum of eighteen dollars ($18.00) per week under the Workmen's Compensation Act of New Mexico, but there is one question of law to be decided by the Court in this matter: for how many weeks shall judgment be given to plaintiff?”

From the foregoing findings the court concluded that the plaintiff was entitled to be awarded compensation at the rate of eighteen dollars per week for three hundred weeks, dating from the time of the injury on July 10, 1939, without deduction for any payments made to the decedent during his lifetime. The court further concluded that there was presently due from the defendants to the plaintiff the total of accumulated weekly installments which should be paid forthwith and the weekly payments continued thereafter until the remaining payments sufficient to make up three hundred weekly payments had been completed. Judgment was rendered accordingly.

The defendants claim error in the judgment so rendered in two respects. First (and for the first time, since the question was not raised below), they say the plaintiff was not entitled to judgment in any amount, the decedent's death having taken place more than one year after he suffered the injuries causing death. Next, they assert that, if the death statute in any event should be held applicable, they should have been given credit in any recovery for the weekly payments already made to the decedent in his lifetime.

We shall dispose of these contentions in reverse order. Indeed, if the appellants are to be sustained on the first claim of error, it would become unnecessary to consider the second.

1941 Comp. § 57-917, provides:

“In event any injury from accident arising out of and in the course of the employment of a workman should result in and be the proximate cause of his death and he should leave surviving him any dependents, as herein defined, entitled to compensation under the terms hereof, payment thereof may be received or claim therefor filed by such person as the court may authorize or permit, on behalf of the beneficiaries entitled thereto, and such claim shall be filed and answer made thereto and other procedure had as in cases filed by the injured workman. Provided, that no claim shall be filed or suit brought to recover such compensation unless claim therefor be filed within one (1) year after the date of such death.”

1941 Comp. § 57-918(a) (2), so far as material to a consideration of this claim of error, provides:

“In case death proximately results from the injury within the period of one (1) year, compensation shall be in the amounts and to the persons as follows:

“(1) If there be no dependents, the compensation shall be limited to the funeral expenses not to exceed one hundred and fifty dollars ($150.00) and the expenses provided for medical and hospital services for deceased, together with such other sums as deceased may have paid for disability.

“(2) If there are dependents at the time of the death, the payment shall consist of not to exceed one hundred and fifty dollars ($150.00) for funeral expenses and the percentage hereinafter specified of the average weekly earnings, subject to the limitations of this act (§§ 57-901-57-931), to continue for the period of three hundred (300) weeks from the date of injury of such workman; Provided that the total death compensation payable in any of the cases hereinafter mentioned, unless otherwise specified, shall not be less than ten ($10.00) dollars per week nor more than eighteen ($18.00) dollars per week.”

[1][2] While claim was filed by the widow within one year following death,...