N.M. State Highway Dep't v. Bible.

• Decision Date: 27 March 1934
• Docket Number: No. 3890.,3890.
• Citation: 34 P.2d 295,38 N.M. 372
• Parties: NEW MEXICO STATE HIGHWAY DEPARTMENT et al.v.BIBLE.
• Court: New Mexico Supreme Court

38 N.M. 372

34 P.2d 295

NEW MEXICO STATE HIGHWAY DEPARTMENT et al.

v.BIBLE.

No. 3890.

Supreme Court of New Mexico.

March 27, 1934.Rehearing Denied July 10, 1934.

Error to District Court, Chaves County; Patton, Judge.

Action by E. S. Bible against the New Mexico State Highway Department and the Commercial Casualty Insurance Company. Judgment for plaintiff, and defendants bring error.

Reversed as to defendant highway commission, and affirmed as to defendant insurance company.

Statute providing for allowance of reasonable attorney's fee, if workmen's compensation claimant is compelled to resort to court proceedings, held not unconstitutional as denying equal protection. U.S.C.A.Const. Amend. 14; Const.N.M. art. 2, § 18; Comp.St.1929, § 156-122.

J. C. Gilbert, of Roswell, for plaintiffs in error.

J. D. Atwood and H. C. Buchly, both of Roswell, for defendant in error.

BICKLEY, Justice.

Defendant in error as plaintiff sued plaintiffs in error as defendants, and will hereafter be referred to as plaintiff and defendants. The suit was to recover workmen's compensation, the plaintiff claiming total disability resulting from a permanent injury received while employed by the defendant New Mexico State Highway Department (Commission). Judgment was for plaintiff against defendants for the relief prayed, including $250 attorneys' fees for prosecuting claim, in the district court allowed as a part of the costs. Defendants appealed and rely upon the following points for reversal.

“First Point. The trial court erred in holding that the posterior process of the third and fourth cervical vertebrae of plaintiff's neck was injured and that said injury was permanent in its nature, resulting in the total disability of the plaintiff and preventing plaintiff from pursuing any gainful occupation of any kind whatsoever.

“Second Point. That even if the plaintiff is totally and permanently injured, he is not entitled to recover attorney fees because Section 156-122, New Mexico Statutes Annotated, Compilation 1929, is in violation of the Due Process Law provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States and of the similar provision of article 2, section 18 of the Constitution of New Mexico, and is also in violation of article 4, section 26 of the Constitution of New Mexico, prohibiting the legislative grant of special rights, franchises, privileges, immunities, or exceptions.

“Third Point. The State Highway Commission of New Mexico is not a proper party defendant and cannot be sued. This being in reality a suit against the State of New Mexico, which cannot be sued without its consent.”

Among the court's findings of fact, appears the following: “Said injury being permanent in its nature and resulting in a total disability of plaintiff and thereby preventing plaintiff from pursuing any gainful occupation of any kind whatsoever.” (Italics ours.)

This is the finding attacked in the argument of defendants under their first point. They say: “We think this case should be reversed for the reason that the plaintiff failed to prove by preponderance of evidence (italics supplied) that he is totally disabled and prevented from pursuing any gainful occupation of any kind whatsoever.”

[1][2] We do not undertake to weigh the evidence to determine where the preponderance of the evidence lies. Review of judgment under Workmen's Compensation Act (Comp. St. 1929, § 156-101 et seq.) is limited to correction of errors of law. De Lost v. Phelps-Dodge Corp., 33 N. M. 15, 261 P. 811. We discover that the finding is supported by substantial evidence, and therefore do not disturb it. Defendants further contend that the trial court erred in applying the law to the facts, contending further that under the weight of authority, if the injured employee is able to do work of a light nature, he cannot be said to be totally disabled. Without here expressing an opinion as to what the correct rule is, it is sufficient to say that the finding of the court does not evince an ignoring of the contention of the defendants. It indicates that the court thought the facts did not bring the case even within the rule contended for by defendants. The view of the court as to the facts found is reflected further in the colloquy:

“Col. Atwood: Just a minute. Do I understand the question to state the work of the kind he testified he was doing, or the other work. Do you, by your question mean that this work he had been doing caused this pain?

“The Court: I take it he was enumerating the kind of work the Plaintiff testified he was doing since his injury; or that he tried to do. He testified he could not do any.” (Italics supplied.)

[3] It is true the record contains testimony of plaintiff and others as to his efforts at doing light work which were invariably attended with painful and unfortunate after effects. We do not regard this testimony as impairing the court's finding.

On the question of permanency of injury, defendants say: “While it is not required that definite proof be furnished that the condition continue until death, it should be shown from all the facts available and under consideration at the time the decision is being reached, it should appear that there is no likelihood of any change for the better in the condition which is then found to exist.”

Even so viewing the matter, we conclude that the court's finding is supported by substantial evidence.

[4] As we understand the second point of defendants, it presents the proposition that the clause of section 156-122, Comp. St. 1929, making provision for allowance of a reasonable attorney's fee in case the claimant is compelled to resort to court proceedings to collect his claim, is unconstitutional as being repugnant to the equal protection and the due process clauses of the Federal Constitution and corresponding clauses of the New Mexico Constitution (Const. U. S. Amend. 14; Const. N. M. art. 2, § 18).

These contentions and the arguments advanced by defendants in support thereof were satisfactorily answered in Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 34 S. Ct. 678, 58 L. Ed. 1135, and also in a degree answered by the territorial Supreme Court in Genest v. Las Vegas Masonic Bldg. Ass'n, 11 N. M. 251, 67 P. 743, which was approved in Gray v. New Mexico Pumice Stone Co., 15 N. M. 478, 110 P. 603, holding constitutional a lien statute providing for allowance of attorneys' fees.

[5] As to the third point, we are disposed to agree with the contention of defendant highway commission that a suit against the state highway commission is virtually a suit against the state. This point that the state cannot be sued without its consent and that its consent has not been given was raised in the trial court and here solely on behalf of the defendant state highway commission. As to this, our decision is controlled favorably to the contention by Dougherty v. Vidal, 37 N. M. 256, 21 P.(2d) 90.

From all of the foregoing, it appears to have been error to render judgment against the defendant New Mexico Highway Commission, and the same is reversed, and that the judgment against the defendant Commercial Casualty Insurance Company should be affirmed, and it is so ordered.

The question of allowance of attorneys' fees to plaintiff in this court presented informally in his brief and not argued extensively by either party, we reserve for consideration upon hearing of this matter alone, when and if presented seasonably.

On Motion for Rehearing and Motion of Defend...