Hughey v. Ware

• Decision Date: 08 March 1929
• Docket Number: No. 3175.,3175.
• Parties: HUGHEYv.WARE et al.
• Court: New Mexico Supreme Court

34 N.M. 29

276 P. 27

HUGHEY

v.WARE et al.

No. 3175.

Supreme Court of New Mexico.

March 8, 1929.

Syllabus by the Court.

Where employer and employee both reside in Texas, and enter into the contract of employment there, to be performed in New Mexico, and the injury occurred in New Mexico, and compensation is applied for and obtained in Texas under the law of that state, there cannot be a further award in New Mexico; it not being the policy of workmen's compensation acts to give double compensation for a single injury.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Proceeding under the Workmen's Compensation Act by A. T. Hughey, claimant, opposed by H. T. Ware and the Maryland Casualty Company, insurer. Judgment of dismissal, and claimant appeals. Affirmed, and cause remanded.

Where employer and employee both reside in Texas, and enter into the contract of employment there, to be performed in New Mexico, and the injury occurred in New Mexico, and compensation is applied for and obtained in Texas under the law of that state, there cannot be a further award in New Mexico; it not being the policy of workmen's compensation acts to give double compensation for a single injury.

Marron & Wood, of Albuquerque, for appellant.

Francis C. Wilson and Thomas H. Dodge, both of Santa Fé, for appellees.

WATSON, J.

Appellant, while in the employ of one Ware, was injured at Albuquerque, in this state, and by petition filed in the district court of Bernalillo county invoked the provisions of the New Mexico Workmen's Compensation Act (chapter 83, Laws 1917, as amended). He alleged that appellee, the Maryland Casualty Company, had issued a policy of insurance under said act.

Appellee filed a motion to dismiss the petition, therein alleging that both appellant and Ware were residents of Texas, and that the contract of employment was made in that state, and that Ware had carried a compensation policy with the Union Indemnity Company, which covered his operations for all contracts of employment made in Texas, regardless of the place of injury; that after the injury appellant made claim against both Union Indemnity Company and appellee, Maryland Casualty Company; that the latter company contended that the accident was covered by the laws of Texas and by the policy of the Union Indemnity Company; that the question of liability as against both companies was submitted to the Industrial Accident Board of Texas, which acquitted and discharged appellant from all liability, and made an award against Union Indemnity Company of $20 per week for the term of 16 weeks; that there had been no appeal; and that the award had been in part carried out.

The court rendered final judgment dismissing the petition, upon the ground that it was without jurisdiction to entertain the claim, for the reasons that the contract of employment was made in Texas, the accident was covered by the laws of that state, and that the award of the Industrial Accident Board of Texas barred further recovery in this state.

The adoption of workmen's compensation laws in most of the states, and the fact that many employers and employees do not confine their businesses or their activities to any one state, have given rise to a number of interesting questions, in process of settlement during recent years, of the extraterritorial effect of the statutes, and of conflict of laws.

It is appellees' contention, as we understand it, that the Texas statute is elective; that, being so, it has extraterritorial effect; that it is to be read into all contracts of employment made in Texas; and that, if any jurisdiction resides in the courts of this state to award compensation for the injury, it is jurisdiction to execute the law of Texas only. If that were the end of the matter, it might be questioned which law should be read into the contract of employment. It would seem, from the facts pleaded in the motion, that the contract was one to be performed in New Mexico. The allegation is “that * * * claimant * * * was hired * * * in the city of El Paso, state of Texas, as foreman * * * for work undertaken by the said Howard T. Ware in the city of Albuquerque, state of New Mexico. * * *”

But these questions are not necessary of decision. The material matter is that appellant has invoked the Texas statute, and has obtained the compensation which the Texas law affords. This fact forces appellant to contend that, where an employee comes within the provisions of two statutes, he may have the benefit of both. It is this question only that requires answer here.

Appellant's principal reliance is upon Rounsaville v. Central R. Co., 87 N. J. Law, 371, 94 A. 392. There the question involved was whether an employee, residing and contracting in New Jersey, could recover for an injury occurring in Pennsylvania. It was held that he could. The opinion concludes with this paragraph:

“There is no proof in the pending case as to the Law of Pennsylvania. If it be said that the Pennsylvania law may provide a different scheme of compensation, and that the effect of our decision may be to allow a double recovery, we can only say that questions of that kind had better be dealt with as they arise, and in the light of the exact scheme of compensation that may be involved. It is enough for the present to say that recovery of compensation in two states is no more illegal, and is not necessarily more unjust, than recovery upon two policies of accident or life insurance.”

This case has been frequently cited. The foregoing statement is not precedent, since there was no claim that the workman had applied for or received compensation under the Pennsylvania law. Schneider, in his work on Workmen's Compensation (volume 1, § 47), thus comments:

“It would appear, therefore, in the case of an employee injured in Missouri, in the performance of a contract made in Indiana, that he would have the right at his option to proceed against his employer either under the Missouri act, or the Indiana act, or perhaps even under both, as in reply to the contention that to give an act extraterritorial operation might permit a...