Holman v. Oriental Refinery

• Citation: 75 N.M. 52,1965 NMSC 29,400 P.2d 471
• Decision Date: 22 March 1965
• Docket Number: No. 7537,7537
• Parties: Harvey L. HOLMAN, Plaintiff-Appellee, v. ORIENTAL REFINERY, Oriental Blue Streak, and London Guarantee and Accident Company, Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 471

400 P.2d 471

75 N.M. 52

Harvey L. HOLMAN, Plaintiff-Appellee, v. ORIENTAL REFINERY, Oriental Blue Streak, and London

Guarantee and Accident Company,

Defendants-Appellants.

No. 7537.

Supreme Court of New Mexico.

March 22, 1965.

Keleher & McLeod, Russell Moore, Albuquerque, for appellants.

Sheehan & Duhigg, Albuquerque, for appellee.

MOISE, Justice.

Appellants, employer and insurer, hereinafter collectively called 'employer' present three points relied on for reversal of a judgment granting recovery to appellee-employee based on 30% disability under the New Mexico Occupational Disease Disablement Law (Secs. 59-11-1 to 59-11-42, N.M.S.A.1953). They are:

1. That the act is sui generis, and that the rules of civil procedure are not applicable to actions brought thereunder. The specific question has to do with whether Rule 15(c) (Sec. 21-1-1(15)(c) N.M.S.A.1953), dealing with relation back of amended pleadings, is applicable.

2. That the first amended complaint was not verified and was accordingly fatally defective.

3. That an employee is not entitled to recover under the act if, after being incapacitated by the occupational disease he earns or is able to earn as much or more than he did before.

The court found that the employee worked as a gasoline station attendant for employer; that during November, 1961 employee first became aware of swelling and itching of his arms and body, severe headaches, nausea, and lack of appetite. The condition resulted from an allergy to gasoline containing lead and its poisonous compounds, and was first diagnosed as such by a doctor on January 9, 1962. The doctor recommended that employee get a different job. A letter from the doctor to this effect was shown to employee's superior some time before January 28, 1962, on which date the employment was terminated. On March 2, 1962, what was denominated a 'Workmen's Compensation Complaint' was filed in district court. In November, 1962, pursuant to motion theretofore filed, permission to file an amended complaint was granted, and employee's first amended complaint stating a claim under the New Mexico Occupational Disease Disablement Laws was filed. At the time of trial employee was receiving more pay in his new job than he received when he worked for employer. Employee was determined to be 30% disabled, and was awarded compensation accordingly.

Section 59-11-30, N.M.S.A.1953, provides that compensation under the act is barred unless written claim is filed with the court within 90 days after the beginning of the disablement where the same results from poisoning by benzol or its poisonous derivatives. The employee first became aware that his difficulties resulted from an allergy on January 9, 1962. The first claim under the Occupational Disease Disablement Law was filed November 16, 1962. While asserting that the employee knew of his condition and its cause in November, 1961, and that the 90-day limitation period should be computed from then, employer argues that even when the date of January 9, 1962 is used, the claim was still barred because not filed until November 16, 1962. Its position is correct if the amended complaint in which the claim under the Occupational Disease Disablement Act was first asserted is not an amendment which could be related back to March 2, 1962, when the 'Workmen's Compensation Claim' was filed.

That workmen's compensation statutes are sui generis, and that the rules of procedure in civil actions are not applicable except as specifically provided therein, has been long recognized by us. Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000; Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044. Also, as was noted in Guthrie v. Threlkeld Co., 52 N.M. [75 NM 55] 93, 192 P.2d 307, 'special statutory * * * proceedings where existing rules are inconsistent * * *' are specifically excepted from the operation of our rules of civil procedure. (Sec. 21-1-1(1), N.M.S.A.1953) In Armijo v. United States Casualty Company, 67 N.M. 470, 357 P.2d 57, we held the summary judgment procedure of our rules inapplicable. Prior to amendment of our workmen's compensation statute in 1959 (Sec. 59-10-13.9, N.M.S.A.1953) there was no provision in the workmen's compensation law for application of any of the rules of civil procedure. Since the effective date of Sec. 59-10-13.9, supra, a different situation exists. Now the rules of civil procedure apply '* * * except where provisions of the Workmen's Compensation Act directly conflict with these rules * * *.'

We find in Sec. 59-11-16, N.M.S.A.1953, a sentence reading: 'Except as otherwise provided herein the procedure in such causes [Occupational Disease Disablement cases] shall as nearly as possible follow the procedure in civil cases.' In our view, this language is comparable to Sec. 59-10-13.9, supra, of our present workmen's compensation law and under the rules noted above requires application of the rules of civil procedure in cases arising under the Occupational Disease Disablement Law unless not reasonable to do so. We perceive of no reason why it is not possible to apply Sec. 21-1-1(15)(c), supra.

That the requirement that a written claim be filed within 90 days is mandatory, we do not doubt. Compare Reed v. Fish Engineering Corp., 74 N.M. 45, 390 P.2d 283. Unless we can say that the filing of the 'workmen's compensation claim' on March 2, 1962, may be considered as the 'written claim' required by Sec. 59-11-30, supra, or the amendment related back to that date, the claim would be forever barred. An examination of the complaint discloses that it sought judgment for total and permanent disability and medical bills because of alleged accidental injury resulting from breathing gasoline fumes in the course of and incident to employee's employment as a station manager by employer. In the first amended complaint employee sought compensation for total and permanent disability under the provision of the Occupational Disease Disablement Law for an occupational disease suffered in the course of his employment as a general station manager of a gasoline station of the employer on or about January 9, 1962, and prior thereto.

In our view, the claim filed March 2, 1962 was sufficient compliance with Sec. 59-11-30, supra. This is particularly true in the light of the provision of Sec. 59-11-16, supra, to the effect that '* * * the claim shall be informal in character and shall set forth sufficient facts for the determination of the same, and if defective in any particular may be corrected by the court or by the claimant at any time before or during a hearing thereof.'

All that is required by Sec. 59-11-30, supra, is the timely filing of a complaint. As noted, Sec. 59-11-16, supra, provides that this may be done informally, but so long as facts are pleaded from which the employee's rights may be determined, defects may be corrected. An amended claim may relate back to the date of the original claim if such amended claim arose out of the same conduct, transaction, or occurrence as the claim set forth in the original complaint. If it did, it will be related back to the date of the filing of the original complaint. Sec. 21-1-1(15)(c), supra; Carney v. McGinnis, 68 N.M. 68, 358 P.2d 694; Wiren v. Paramount Pictures, (1953) 92 U.S.App.D.C. 347, 206 F.2d 465.

When these sections are considered along with Rule 15(a) (Sec. 21-1-1(15)(a), N.M.S.A.1953) providing for freely granting of leave to amend when justice requires, we readily conclude that to hold otherwise would be a departure from the liberal spirit of our rules applicable generally in civil cases (Peoples v. Peoples, 72 N.M. 64, 380 P.2d 513) and would result in the application of a strict rule in connection with this highly favored and salutary type of proceeding. This we decline to do. Lipe v. Bradbury, supra. See, 2 Larson, Workmen's Compensation, Sec. 78.10; Davis v. Merck & Co., 166 Pa.Super. 429, 71 A.2d 818.

In addition to the foregoing, the decisions support generally, the following rule which we quote from Wiren v. Paramount Pictures, supra:

'Rule 15(c), Fed.Rules Civ.Proc., 28 U.S.C.A., provides, however, that when a claim asserted in an amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading the amendment relates back to the date of the original pleading. This rule has been discussed in a number of cases. In L. E. Whitham Const. Co. v. Remer, 10 Cir., 1939, 105 F.2d 371, 375-376, it is held, 'the rule is not applicable where the amendment introduces a different and additional claim or cause of action.' In Barthel v. Stamm, 5 Cir., 1944, 145 F.2d 487, certiorari denied, 1945, 324 U.S. 878, 65 S.Ct. 1026, 89 L.Ed. 1430, in ruling that the amendment related back, the court pointed out in detail how the writings pleaded in the amendment had to do with the same claim set forth in the original pleading. In Murfkan v. Kahn, D.C.S.D.Fla.1951, 11 F.R.D. 520, 522, it is said that though Rule 15(c) does not use the phrase 'new cause of action', the principle still prevails that an amendment will not be allowed if it introduces a new cause of action which as an independent proceeding would be barred by the statute of limitations. In Boerkoel v. Hayes Mfg. Corp., D.C.W.D.Mich.1948, 76 F.Supp. 771, the guiding principle, turning upon whether or not a new cause of action is stated, is reaffirmed, but it is also pointed out that if the amendment merely explains, expands or amplifies what was alleged in support of the cause of action already asserted it does relate back. In Brown v. New York Life Ins. Co., D.C.D.N.J.1940, 32 F.Supp. 443, 444, it is said that the rule that an amendment will not be allowed if it introduces a new cause of action has not been changed by Rule 15(c), but that an amendment will not as a rule be held to state a new cause of action if the facts alleged show substantially the same wrong or if the gist of the action or...