Howie v. Stevens
| Decision Date | 08 May 1984 |
| Docket Number | No. 7351,7351 |
| Citation | 1984 NMCA 52,102 N.M. 300,694 P.2d 1365 |
| Parties | Raymond T. HOWIE, Plaintiff-Appellant, v. Bobby G. STEVENS, d/b/a Foodmart, Stevens Enterprises, Inc., a New Mexico corporation, John Doe and John Doe Insurance Company, Defendants-Appellees, and Tri-State Wholesale Associated Grocers, Inc., Defendant. |
| Court | Court of Appeals of New Mexico |
Plaintiff appeals the trial court's dismissal of his common law personal injury action and his workmen's compensation action on summary judgment motions. The personal injury action was dismissed because workmen's compensation was determined to be plaintiff's exclusive remedy. The workmen's compensation action was dismissed as barred by the statute of limitations. We discuss defendants' motion to dismiss the appeal, the child labor law, and the Workmen's Compensation Act, and reverse.
Plaintiff was injured on or about February 12, 1977, when he worked as a carry out boy/stocker at the Foodmart grocery store in Las Cruces. As he bent over to price jars in cases on the floor of a grocery aisle, four cases of canned goods, which were stacked on a cart with other cases before being put on the shelves, fell on his back. Plaintiff was knocked "flat on the case" on the floor by the impact. Following the accident, plaintiff was very stiff and sore. He was under the care of a chiropractor until approximately May 1977. Plaintiff's birth date is December 1, 1961. He was fifteen years old at the time of the accident. He did not receive workmen's compensation, but the employer, Bobby G. Stevens, personally paid his medical bills. Plaintiff did not file this action based on the accident until December 1, 1980, after he had enlisted in the Navy and then been discharged because of the discovery of permanent back damage.
Plaintiff seeks relief under two causes of action: common law personal injury and workmen's compensation. Defendants are Bobby G. Stevens (d/b/a Foodmart, Stevens Enterprises, Inc.), who owned and operated the Foodmart store at the time of the accident; Tri-State Wholesale Associated Grocers, Inc., whose employees allegedly stacked the cases on the cart; and John Doe and the John Doe insurance company, the company which provided Foodmart's workmen's compensation coverage. Bobby G. Stevens (d/b/a Foodmart, a/k/a Stevens Enterprises, Inc.) and American Fire and Casualty Company are the defendants-appellees in this appeal. A personal injury action against Tri-State is pending in the trial court but Tri-State is not a party in this appeal.
Defendants have filed a motion to dismiss plaintiff's appeal pursuant to NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App. Rules 102 and 404 (Repl.Pamp.1983). We find the arguments are without merit and do not bear repeating. Defendants cannot distinguish between violations of rules which are insufficient to warrant dismissal and plaintiff's arguments of law. Defendants have not demonstrated any prejudice from plaintiff's errors in failing to cite the record and carelessly quoting a single statute. Defendants' argument that "Plaintiff's appeal is frivolous and has prejudiced Defendants in having to respond to an appeal without merit" is frivolous.
The common law remedy was considered by the court to have been superseded by plaintiff's exclusive remedy in workmen's compensation. On appeal, plaintiff presents three arguments. We need only discuss the argument that the employer violated the following child labor law statute in the employment of plaintiff: NMSA 1953, Section 59-6-2 (2d Repl.Vol. 9, pt. 1, 1974) (NMSA 1978, Section 50-6-2).
Under Maynerich v. Little Bear Enterprises, Inc., 82 N.M. 650, 485 P.2d 984 (Ct.App.1971), the employment contract of an illegally employed minor is at least voidable, giving that minor employee the right to pursue a common law action against the employer if the minor is injured in the employment. In Maynerich, plaintiff was injured during the course of his employment with defendant when he was told to "climb upon the fork lift to designate the placement of bales of hay after they had been unloaded from the truck." At the time of the injury, plaintiff was fifteen years old. He brought a common law action for damages. The trial court assumed for the purpose of defendant's summary judgment motion that plaintiff's employment fell within the law prohibiting a child under the age of sixteen from working in " 'any employment dangerous to lives and limbs, * * * ' ". Quoting from NMSA 1953, Sec. 59-6-5 (2d Repl.Vol. 9, pt. 1, 1974). The trial court granted the employer's summary judgment motion finding that plaintiff's exclusive remedy was under the Workmen's Compensation Act. We reversed and held that since the employment was in violation of the child labor law the contract was illegal and could not be relied on by the employer in order to come within the protections of the Workmen's Compensation Act.
59-6-2. Certificate for children fourteen to sixteen during school term.--No child over the age of fourteen years and under the age of sixteen years shall be employed or permitted to labor at any gainful occupation during the term of the school of the district in which the child resides, unless the child has procured and filed permit certificate as herein provided for.
(Emphasis added.)
This statute was not discussed in Maynerich, and it does not appear that New Mexico appellate courts have ever applied the statute.
The issue of the permit was not raised below by plaintiff. However, it is still an issue in this appeal because defendants had the burden of showing a legal contract of employment. As we stated in Maynerich: "[I]f the employer * * * seeks to avail itself of the Workmen's Compensation Act as a bar to a common law action, then it must show a valid contract of employment between it and [the plaintiff]."
There is not a legal contract of employment without a permit because the employer has committed a misdemeanor by hiring the minor who does not have a permit. See NMSA 1953, Sec. 59-6-13 (2d Repl.Vol. 9, pt. 1, 1974) (NMSA 1978, Sec. 50-6-12). Section 59-6-2 puts the burden on the employee to procure the permit, but it also says "[n]o child * * * shall be employed", which speaks to the employer's responsibility. Defendants did not produce a labor permit and, in order to make a prima facie showing of a legal contract of employment, that was their burden. Plaintiff's employment came within Section 59-6-2 because: 1) he was fifteen years old at the time of the accident, and 2) his employment was during the school term.
Defendants read Section 59-6-2 to require a permit only when a child aged fourteen to sixteen works during hours school is in session. They argue that "during the term of school" means during the hours of school. They refer to NMSA 1978, Section 50-6-1. (See NMSA 1953, Sec. 59-6-1 (2d Repl.Vol. 9, pt. 1, 1974).) That statute does not help their interpretation; it refers to children under the age of fourteen. It also specifically refers to "hours during which the schools * * * are in session" (emphasis added) showing that the Legislature knew to specify "hours" when that was its intention. In addition, NMSA 1953, Section 59-6-8(C) (2d Repl.Vol. 9, pt. 1, 1974) in describing the information necessary for a work permit application, details extra information required when the child aged fourteen to sixteen wishes to work "during the session hours of the school * * *." It would be unnecessary to distinguish between the general application and an application to work during school hours, if the permit were required only when the child wished to work during school hours. Defendants' reading of Section 59-6-2 is incorrect.
The court erred in granting summary judgment against plaintiff on the common law action because defendant movant had not made a prima facie case that workmen's compensation was plaintiff's exclusive remedy. A prima facie case must include evidence of a legal contract of employment. There is no legal contract of employment with a worker under the age of sixteen without a permit.
As to the argument that plaintiff's employment fell within the prohibited occupations for children under sixteen, NMSA 1953, Section 59-6-5 (2d Repl.Vol. 9, pt. 1, 1974) (NMSA 1978, Section 50-6-4), we need only state that defendants introduced nothing. We have only plaintiff's affidavit and deposition which described the carts and how they moved. It was defendants' burden to show there was no genuine issue of material fact. Plaintiff's description of the carts raises an issue of how unsteady the carts were; the issue is material because 1,500 to 3,000 pounds of goods were typically stacked on the cart and cases had fallen off before plaintiff's accident. Defendants failed to carry their burden. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).
NMSA 1953, Section 59-10-13.6(A) (2d Repl.Vol. 9, pt. 1, 1974) (NMSA 1978, Section 52-1-31) provides that the one-year statute of limitations for filing a complaint in workmen's compensation, which begins to run upon denial or failure of payment, is tolled during the time the injured employee remains employed by the defendant employer up to a period not to exceed one year. This tolling provision applies because plaintiff continued to work at Foodmart after recovery in May 1977 until April 1978. Therefore, the statute of limitations expired in February 1979. Plaintiff's complaint, filed December 1, 1980, was over one and one-half years late.
Plaintiff presents three arguments to show...
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