Kandelin v. Lee Moor Contracting Co.

• Decision Date: 11 July 1933
• Docket Number: No. 3797.,3797.
• Citation: 37 N.M. 479,24 P.2d 731
• Parties: KANDELINv.LEE MOOR CONTRACTING CO.
• Court: New Mexico Supreme Court

37 N.M. 479

24 P.2d 731

KANDELIN

v.LEE MOOR CONTRACTING CO.

No. 3797.

Supreme Court of New Mexico.

July 11, 1933.

Appeal from District Court, Luna County; George W. Hay, Judge.

Action by Theodore A. Kandelin against the Lee Moor Contracting Company, a corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Workmen's compensation is regarded as occupational insurance, which cannot be deducted from and set off against injured employee's claim against third party for damages. Comp.St.1929, § 156-124.

Jones, Goldstein, Hardie & Grambling and Ben R. Howell, all of El Paso, Tex., J. Benson Newell, of Las Cruces, and J. O. Seth, of Sante Fe, for appellant.

R. F. Hamilton, of Deming, and Percy Wilson, of Silver City, for appellee.

BICKLEY, Justice.

Kandelin sued appellant for damages occasioned by personal injuries due to the negligent operation by appellant of a truck on a New Mexico highway. Later, the Pacific Indemnity Company sued, in the same court, to recover sums of money that company as insurer of appellee's employer paid to Kandelin under the compensation laws of California. Upon motion of defendant (appellant), the court consolidated said causes for all purposes including trial and appeal. At the opening of the trial, appellant asked permission to file an amended answer to appellee's complaint. Its principal difference from the original answer was that it contained a plea in bar, which, in substance, alleged that the Pacific Indemnity Company had instituted the action against appellant above mentioned, wherein it was claimed that by virtue of a certain policy of compensation insurance it had been obliged to pay to appellee the sum of $950 as workmen's compensation insurance, and that appellee was, at the time of the injuries complained of, an employee of the Hickok Manufacturing Company and such employer was insured by the Pacific Indemnity Company under the terms of the Workmen's Compensation Act of California (St. Cal. 1917, p. 831, as amended), and appellee was covered by said policy and was injured while in the course of his employment; that appellee made a claim with the Pacific Indemnity Company for workmen's compensation insurance and elected to receive the sum of $950 in full settlement of said claim for workmen's compensation; that the filing of the claim with the Pacific Indemnity Company by appellee, and the payment of the sum of $950 to him as aforesaid, and his acceptance thereof, constituted an assignment by appellee to Pacific Indemnity Company of his cause of action for personal injuries against appellant; and that, by virtue of such assignment, appellee was barred from asserting any claim or cause of action for personal injuries against the Moor Contracting Company. Appellee thereupon moved the court to vacate the order of consolidation of the two causes, and the court granted the motion. The court thereupon permitted the amended answer to be filed, but, upon motion of plaintiff, struck from it the plea in bar above referred to, and proceeded to trial, which resulted in a verdict in favor of Kandelin upon which judgment was entered in his favor.

[1] Appellant's points 6 and 7, relied upon for reversal on this appeal, are as follows:

“6. The Court erred in its main charge to the Jury in paragraph Six thereof, in not limiting Plaintiff's recovery to the reasonable and necessary amounts expended by Plaintiff for medical services, hospitalization, etc.

“7. The Court erred in its main charge to the Jury in Paragraph Six thereof, in not limiting Plaintiff's recovery for permanent injuries, paid, etc., to a sum which would reasonably compensate Plaintiff for such permanent injuries, paid, etc.”

In view of the fact that the verdict is little more than half of the maximum authorized by the instructions; that it is not claimed that the verdict is excessive; that all through the testimony as to medical services, hospitalization, etc., the reasonableness of the charges therefor was frequently adverted to, we think the omission from the instruction of the qualifying phrase that plaintiff was entitled only to a “reasonable” recovery, could not have misled the jury, and the error, if any, was harmless.

[2] As to the error in admitting testimony mentioned in point No. 9, we find that the witness, Dr. Moir, had first-hand information of the condition of the plaintiff and knew what would be required to be done to repair his injuries, and knew Dr. McGhee, and his skill as a surgeon, and saw plaintiff after he had been attended by Dr. McGhee, and therefore we are of the opinion that the witness would not have been better circumstanced to testify to the reasonableness of Dr. McGhee's charges by having had submitted to him a hypothetical question of what had actually been done.

[3] Appellant claims that the court erred in refusing an instruction requested by it as follows: “It is the duty of a driver of an automobile to so propel the auto on the highway at night at such rate of speed that he can stop in time to avoid objects after they come within the area lighted by his lamps.”

There is a conflict in the decisions as to whether it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid an obstruction discernible within the driver's length of vision ahead of him. We need make no declaration on this subject at the present.

The instruction, the refusal of which is complained of, presents an abstract proposition of law. It could only have been applicable in this case upon the issue of contributory negligence upon the part of the plaintiff.

The specific allegation of contributory negligence on the part of plaintiff is that he failed “to keep a proper lookout in attempting to pass the said truck without slowing down, and in failing to stop to avoid the collision.”

We do not think the requested instruction would have been appropriate under such a claim of contributory negligence. There were no requests for further instructions regarding the effect of the alleged violation of duty of plaintiff as contributory negligence which would show the applicability of the refused instruction.

[4] Furthermore, the court submitted to the jury a special interrogatory as follows: “‘Do you find from a preponderance of the evidence that at and just prior to the collision plaintiff was operating his car in such a manner that he could not bring it to a stop before striking any object after it came within the range of his lights?’ To this interrogatory the jury answered: ‘No.”’

The issue of fact on this point was thus settled by the jury adversely to the contention of appellant. We think there was no error in the refusal of the instruction, and in any event, if error it was, it was harmless.

There are other points presented as to alleged errors in giving and refusing instructions which we have examined and find without merit.

The foregoing are treated by appellant as subordinate to the larger question which we now consider.

[5] Appellant asserts that Kandelin's cause of action in tort for personal injuries against appellant, became vested in Pacific Indemnity Company by statutory assignment by virtue of appellee having claimed and accepted compensation for his injuries under the Workmen's Compensation Act of California and claims as a result, that the entire tort cause of action is vested in the Pacific Indemnity Company, and that appellee is barred from asserting it. Appellant argues that, there being in the record no pleading or proof of the law of California regarding workmen's compensation insurance, such law of California will be presumed to be the same as the law of New Mexico. So relying, appellant points to a portion of section 156-124, 1929 Compilation, which is as follows: “The right of any workman, or, in case of his death, of those entitled to receive payment or damages for injuries occasioned to him by the negligence or wrong of any person other than the employer as herein defined shall not be affected by this act, but he or they, as the case may be, shall not be allowed to receive payment or recover damages therefor and also claim compensation from such employer hereunder, and in such case the receipt of compensation from such employer hereunder shall operate as an assignment to the employer, his or its insurer, guarantor or surety, as the case may be, or any cause of action, to the extent of the liability of such employer to such workman occasioned by such injury which the workman or his legal representative or others may have against any other party for such injuries or death.”

Kandelin says that appellant's contention is untenable because, if we shall assume that the laws of California are the same as the laws of New Mexico, it would then appear that appellee was not under the protection of the New Mexico Workmen's Compensation Act (Comp. St. 1929, § 156-101 et seq.), because that act only prescribes the payment of compensation by an employer in certain extrahazardous occupations specifically enumerated, but permits employers and employees in other occupations to bring themselves under the act by written agreement entered into prior to the injuries filed in the office of the clerk of the district court of the county in which such occupation is carried on, and that it appears that appellee was employed as a traveling salesman and not therefore engaged in any of the extrahazardous occupations enumerated in the New Mexico Workmen's Compensation Act, and that no showing is made that he and his employer had filed any agreement to be bound by the provisions of the act, and that therefore any insurance payments made to Kandelin by Pacific Indemnity Company were either purely voluntary or were payments of accident insurance. We dispose of this contention at once upon the principle that one may not claim the benefits of a law and also assert that the law is not applicable to him.

[6]...