Janney v. Fullroe Inc.

• Decision Date: 30 October 1943
• Docket Number: No. 4756.,4756.
• Citation: 47 N.M. 423,144 P.2d 145
• Parties: JANNEYv.FULLROE, Inc., et al.
• Court: New Mexico Supreme Court

47 N.M. 423

144 P.2d 145

JANNEY

v.FULLROE, Inc., et al.

No. 4756.

Supreme Court of New Mexico.

Oct. 30, 1943.Rehearing Denied Jan. 10, 1944.

Appeal from District Court, Colfax County; Irwin S. Moise, Judge.

Proceeding under the Workmen's Compensation Act by Herbert M. Janney, claimant, opposed by Fullroe, Inc., employer, and Employers' Liability Assurance Corporation, Limited, insurance carrier. From a joint and several judgment in favor of the claimant, the employer and insurance carrier appeal.

Affirmed.

Where insurance carrier offered to pay employee regular compensation but refused to pay the 50 per cent. additional compensation, and employee was required to employ counsel to establish his right to the additional compensation, allowance of attorney's fees to employee was justified. 1941 Comp. § 57-907.

Crampton & Robertson, of Raton, for employer, Fullroe, Inc., appellant.

Seth & Montgomery, of Santa Fe, for Employers' Liability Assur. Corporation, Ltd., appellant.V. A. Doggett, of Raton, for appellee.

BICKLEY, Justice.

Plaintiff (appellee) recovered joint and several judgment under the Workmen's Compensation Act against his employer, Fullroe, Inc., a corporation, and its insurance carrier, Employers' Liability Assurance Corporation, Ltd., for loss of an arm and for injury to a thumb and wrist of the left hand.

In addition, the compensation award was increased because the gears of a machine on which plaintiff was injured were not appropriately guarded as required by statute. Plaintiff was further awarded $250 attorney fee and costs of suit.

Defendants (appellants) admitted liability for regular or usual compensation and the insurer offered to pay same but plaintiff refused to accept the offer upon the ground that he was entitled to recover a 50% penalty or additional compensation because no guard was placed at or upon said gears.

Both defendants contend the gears were situated so that they were protected by their location and no guard or other protection was necessary for them. Defendant, Employers' Liability Assurance Corp., Ltd., further contends that its policy covers only ordinary accidents arising in the course of the business of the employment and does not cover the penalty or additional compensation of 50% added by Sec. 5 of Ch. 92 of the Laws of 1937. Defendant, Fullroe, Inc., on the other hand, contends that the law does not impose the 50% penalty or additional compensation solely upon the employer.

Each defendant contends that plaintiff is not entitled to attorneys fees and costs because the suit was unnecessary inasmuch as the insurer had offered to pay the amount of the award, exclusive of the 50% increase.

The plaintiff worked for Fullroe, Inc., as a laborer digging test holes. At the time of the accident the employee was working in and about a mill the employer used in separating gold or ore from gravel. In the course of regular employment he undertook to grease certain gears of the mill, or machine as it is commonly called, when he became caught in such gears and was thereby injured. As a result, his right arm was amputated above the elbow and he also suffered injury to his left thumb and wrist.

The machine by which plaintiff was injured is of the small placer mining type used when the ore is “washed” in a revolving cylinder very much like a cement mixer. The power is supplied by a motor enclosed or covered underneath and at one end of the cylinder. The engine and radiator were mounted upon a frame made of 8-inch beams which were 8 or more inches above the ground. A crank from the engine extended under the radiator.

The gears were located 6 feet above the frame on which the engine rested and were 19 inches back from the front of the engine and 20 inches to the right from center of the engine. In other words, the gears causing the injury were approximately 7 feet 2 inches above the ground. To grease the gears the plaintiff heated the heavy grease in the top or lid of a coffee can, then stood on the crank where it extends under the radiator, reached back and upwards above the gears and poured the grease into the revolving gears. He had finished the greasing job and turned his head around to the left, preparing to step down, when his right hand became entangled in the gears, causing the injury. He was wearing short gauntlet gloves that flared out 1 1/2 or 2 inches at the wrist.

A screen or shield covered the entire engine, extending rooflike or slanting to a point beyond and underneath the gears involved. Barely above the gears was the rounded end of the steel drum or cylinder in which the gravel was washed, and above them a distance of about 2 to 4 feet was the inside edge of the platform and housing structure.

A clutch is operated by pulling a rope which extended down in front of the motor to within easy reach. Disengaging this clutch would have stopped the gears without stopping the other operations of the machine, but it had been the custom of the other employees to grease them while turning. No one in authority had given plaintiff instructions with respect to the method of applying the grease upon the gears. The method employed seems to have been a practical one.

The gears were found by the court to be at a place where no one would come in contact with them except the person greasing them; that no guards of any kind were placed at or upon the gears and that a practicable and suitable guard could have been constructed to prevent a person doing the greasing from coming in contact with them. The defendants contend that the gears by reason of their location were “appropriately guarded” and that plaintiff failed to prove the employer had knowledge of the existence of a practicable guard which could have been employed upon them at the time of the accident.

The court found that the appellant-insurer offered the amount of compensation awarded plaintiff, exclusive of the 50% penalty or increased compensation. The insurer-appellant had issued its standard form of workmen's compensation policy to the employer. The court concluded it was necessary for plaintiff to bring the action to recover and that an attorney fee should be added, and further that judgment should be against the employer and its insurer. It is asserted by appellants, and necessarily follows, that in the event this court finds the gears were appropriately guarded by reason of their location, or should it be held that the insurer-appellant is not liable for the 50% increased compensation, the judgment for such penalty and attorney fee should be set aside as to the insurer-appellant.

The first point relied upon by the appellants for reversal of that part of the judgment which awards the additional 50% compensation is substantially as follows: “The statute does not compel the employer under all circumstances to install a guard around or upon gears of machinery; but only requires that such gears be reasonably or suitably guarded. The location of the gears, to some extent, determines the necessity for guards; and the facts in this case do not justify any increase in the normal compensation allowance.”

The trial court made a finding of fact as follows: “That no guards of any kind were placed at or upon said gears, and that said gears were at a location above and away from a place where anybody would come in contact with them except only a person who was greasing the same, which operation was required to be done twice during each shift of seven hours. That a practical and suitable guard could have been constructed over and around said gears to prevent the person doing the greasing from coming into contact with them.”

Appellants quote the pertinent statute, Sec. 301, Ch. 153, Laws of 1933 (now appearing as 1941 Comp. § 67-2816) with their own marks of emphasis as follows: “All fly wheels, gears, belts, and all exposed moving machinery parts that are liable to cause injury, or dangerous parts of machinery used in and about a mine shall be appropriately guarded to prevent injuries to attendants or other persons.”

Appellants deprecate the finding of the court, heretofore quoted, and say that the court misconceived the true meaning and import of the statute relied upon by the workman. Appellants say that the court in its finding used the word “guard” as a noun and that the statute does not use the noun but uses the verb form, “guarded”. Appellant Fullroe, Inc., argues: “The noun ‘guard’, when used in speaking of machinery, has a very narrow and a rather precise meaning, namely: A mechanical device of some sort. On the other hand, the verb “to guard” has by definition a much broader meaning. It means simply ‘to protect’, and protection may be accomplished in any one of a number of ways. True, it might be accomplished by the installation of a ‘guard’ or it might be accomplished simply by location, arrangement, or method of operation. The statute does not say that every moving gear shall be equipped with a ‘guard’. On the contrary, it uses the broader expression ‘shall be appropriately guarded.’ We think that the trial court incorrectly interpreted the statute as requiring every moving gear to be equipped with a ‘guard’, and that this interpretation is pretty plainly evidenced by Finding of Fact No. 5.” This grammatical analysis is interesting but of little value in construing the statute. In 28 C.J. 1046, “Guard” is thus defined: “As a noun, any one of various protecting or defensive devices for wearing or for attaching to an object as a machine or implement; one that guards against injury, danger, or attack. The meaning of the word as a verb is brought out by the definitions of the noun; and has been defined as meaning to protect from danger; to protect the edge of, especially with an ornamental border; to secure against surprise, attack, or injury.”

We think the distinction, if any exists, is of little aid to appellants.

Appellee admits that gears could be appropriately guarded by their location, but he contends...