Maestas v. Am. Metal Co. of N.M.

• Decision Date: 06 March 1933
• Docket Number: No. 3812.,3812.
• Citation: 37 N.M. 203,20 P.2d 924
• Parties: MAESTASv.AMERICAN METAL CO. OF NEW MEXICO et al.
• Court: New Mexico Supreme Court

37 N.M. 203

20 P.2d 924

MAESTAS

v.AMERICAN METAL CO. OF NEW MEXICO et al.

No. 3812.

Supreme Court of New Mexico.

March 6, 1933.Rehearing Denied April 17, 1933.

Appeal from District Court, Santa Fe County; Otero, Judge.

Proceedings under the Workmen's Compensation Act by Jose M. Maestas, claimant, for injuries, opposed by the American Metal Company of New Mexico, employer, and the Maryland Casualty Company, insurer. From a judgment awarding compensation to claimant, employer and insurer appeal.

Reversed and remanded.

Evidence held to warrant finding employer had actual knowledge of employee's injury.

Gilbert & Hamilton and A. M. Edwards, all of Santa Fe, for appellants.

Francis C. Wilson and Herbert K. Greer, both of Santa Fe, for appellee.

BICKLEY, Justice.

Plaintiff (appellee), an employee of appellant American Metal Company, while in the course of his employment, on July 24, 1929, suffered an injury to his eyes, resulting from an accidental explosion.

Claim for compensation was filed November 9, 1931, which was answered by a denial and a plea that the claim was barred by the limitation contained in the Workmen's Compensation Act (Comp. St. 1929, § 156-101 et seq.). Plaintiff then filed an “Amended Petition for Review and Modification of Award.” It is therein alleged that both of plaintiff's eyes were injured by the explosion; that the left eye was enucleated and that plaintiff was allowed compensation at the rate of 110 weeks for the loss of his left eye; that 106 weeks of such compensation had been paid; that by reason of the aforesaid accident, plaintiff's right eye also was injured and his sight permanently impaired, for which reason plaintiff is permanently, totally disabled from engaging in any remunerative employment. Plaintiff prayed for a review of the original award and that such award be modified and increased. To this amended petition an answer was filed, pleading full payment for loss of the left eye, certain denials and also the bar of the statute because of failure to give notice of the injury and failure to file the claim in time. Just what is intended by the prayer in the amended petition is not clear as the record does not show any award for the right eye or any previous evidence presented in any manner to show that such injury existed. Whatever may be the purpose of this amended petition, it is now conceded by counsel that the theory of review and modification of the original award was abandoned at the trial, and counsel here argue on the theory of separate and distinct injuries.

The trial court awarded judgment for plaintiff. The appellant relies upon four propositions for reversal. In the view we take of the case, it is only necessary to consider the first one which is as follows: “The lower court erred in entering a judgment in this cause over the objection of defendants, the claim having been barred because it was not filed within the time provided for under the provisions of the Workmen's Compensation Act of New Mexico.”

Appellant relies upon the provisions of section 156-113, Comp. St. 1929, which provides:

“The compensation herein provided shall be paid by the employer to any injured workman entitled thereto in monthly installments as nearly equal as possible excepting the first installment which shall be paid not later than thirty-one days after the date of such injury. Any workman claiming to be entitled under this act to compensation from any employer on account of injury suffered by accident arising out of and in the course of his employment shall give notice in writing of such accident and of such injury to such employer within thirty days after the occurrence thereof, unless prevented by such injury or other causes beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty days after such accident; Provided, that no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with which such injury occurred had actual knowledge of the occurrence thereof. Except in the case of such workman being prevented from giving notice by his injuries and in case where no notice is required no workman failing to give such notice within said thirty days after such injuries occurred shall be allowed to recover any compensation on account of such injury under any circumstances whatever for the period he shall remain in default in giving such notice. In event such employer shall fail or refuse to pay the compensation herein provided to such workman after having received such notice, or, without such notice when no notice is required, it shall be the duty of such workman, insisting upon the payment thereof, to file a claim therefor in the manner and within the time hereinafter provided. In event he shall either fail to give such notice within the time required, or fail to file such claim within the time hereinafter required, his claim for such compensation and all right to the recovery of the same and the bringing of any legal proceeding for the recovery thereof shall be and is hereby forever barred. In case of death of any workman who would himself have been entitled had such death not occurred, to recover from such employer on account of any such injuries under the terms hereof, claim may be filed therefor on behalf of his dependents as provided in section 16 (156-116) hereof. In event of the failure or refusal of any employer to pay any workman entitled thereto any installment of the compensation to which such workman may be entitled under the terms hereof, such workman shall be entitled to enforce the payment thereof by filing in the office of the clerk of the district court a claim which shall be signed and sworn to by the injured workman or some one on his behalf before any officer authorized to administer oaths, and filed not later than six months after such refusal or failure of the employer so to pay the same.”

And also upon our holding in Caton v. Gilliland Oil Co., 33 N. M. 227, 264 P. 946, 947, as follows: “If anything can be said to be made plain by this remarkably complicated section, it is this: An employer having knowledge of the injury, must, within 31 days after its occurrence, pay the first installment of compensation. If the employer fails or refuses so to do, the workman must, within 60 days thereafter, file his claim for compensation. If he does not, his claim, his right, and his remedy are forever barred.”

Counsel for appellee urge that because it is conceded that the employer seasonably commenced making payments in compensation for the loss of claimant's left eye, there arose no duty upon appellant employer to pay compensation for the right eye until the payments for the left one had been completed over a course of 110 weeks, and relies upon section 156-118, Comp. St. 1929, which contains a direction that payments of compensation for different injuries, arising out of the same accident, shall run consecutively and not concurrently. If failure to pay alone were all we had to consider, this contention would present a very interesting question. It is difficult to discover a good reason for saying that, when distinct and separate injuries occur simultaneously as the result of one accident, the employer would be relieved from making payment of the first installment, for each injury “not later than 31 days after the date of such injury.” Which of the several injuries claimed shall the employer first pay compensation for? Payment for each injury or acknowledgment of the claim in some way is the only way the employer may protect himself from suit. Does section 156-118 deprive the claimant asserting several permanent injuries growing out of the same accident of the right to commence action if the employer seasonably commences payment for one of them and is silent as to the others? If the claimant commences action alleging a failure to pay the first installment within 31 days after the occurrence, may the employer enter a plea that the suit is prematurely brought because as he is paying for an acknowledged injury, he is not called upon to decide whether he will pay for the other injuries until all of the installment payments have been made for the conceded injury? It may be that after the employer has acknowledged the injuries and has paid the first installment on each that the section of the statute directing that the payments of compensation for different injuries shall run consecutively and concurrently, comes into play. This is pure speculation as far as this case is concerned, and it would be advantageous perhaps if the Legislature would clear it up.

[1] However, we think that “fail” is distinguished from “refuse” which latter involves an act of the will, while the former may be an act of inevitable necessity. Taylor v. Mason, 9 Wheat. (U. S.) 325, 344, 6 L. Ed. 101; Bouvier's Law Dictionary. So we turn our attention to a consideration of whether there was a refusal by the employer to pay compensation for the right eye.

At the conclusion of the evidence, the trial court said: “Going over the entire evidence, listening to it as I have, with a great deal of care, there remains a doubt in the mind of the court as to the entire proposition. I feel that the doubt should be resolved in favor of the claimant and judgment will be for the claimant.”

Usually the claimant has the burden of proving his case. “The burden of proving that the claim was made within the time limit, rests upon the claimant.” Schneider, Workmen's Compensation Law (2d Ed.) § 537; Heed v. Indus. Comm., 287 Ill. 505, 122 N. E. 801.

Where the ordinary statute of limitations is pleaded by the defendant, in an ordinary action, there exists a conflict among the adjudicated cases as to where rests the burden of proof as to when the cause of action accrued. See 37 C. J., Limitations of Actions, § 769. But where the filing of the claim for...