Reck v. Robert E. McKee General Contractors

• Decision Date: 18 August 1955
• Docket Number: No. 5909,5909
• Citation: 1955 NMSC 74,287 P.2d 61,59 N.M. 492
• Parties: Frank A. RECK, Claimant-Appellee, v. ROBERT E. McKEE GENERAL CONTRACTORS, Inc., Employer, and Mountain States Mutual Casualty Company, a Corporation, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 61

287 P.2d 61

59 N.M. 492

Frank A. RECK, Claimant-Appellee, v. ROBERT E. McKEE GENERAL CONTRACTORS, Inc., Employer, and Mountain States Mutual Casualty Company, a Corporation Insurer, Defendants-Appellants.

No. 5909.

Supreme Court of New Mexico.

Aug. 18, 1955.

Simms & Modrall, George T. Harris, Jr., Albuquerque, for appellants.

Joseph L. Smith, Lorenzo A. Chavez, H. A. Kiker, Jr., Albuquerque, for appellee.

SADLER, Justice.

The defendants as appellants complain on appeal of a judgment against them in favor of the plaintiff (appellee) for a workmen's compensation award for partial permanent disability of the body as a whole rather than confining the award to the statutory amount provided for injury to a scheduled member, in this case injury to the left leg at, or between, the knee and ankle.

The plaintiff (claimant) was first employed by the defendant-employer with the classification of an ironworker foreman on September 19, 1950, though he neither acted as a foreman, nor was he paid as a foreman nor was he so acting at time of the injury suffered by him as hereafter stated. He continued in such employment until December, 1951, when he was laid off. He was re-employed on April 8, 1952, working steadily until the date of his injury on October 15, 1952. On last mentioned date while working in his employer's construction yard welding hitches on trailer bumpers, the plaintiff suffered an injury to his left knee which put him off the job for several weeks, during which time he was paid his full weekly salary or wage of $115, each week.

The plaintiff's services for defendant (employer) were terminated on December 16, 1952. Following his injury he consulted his own physician, Dr. Follingstad, of Albuquerque who gave him several treatments and, then, referred him to Dr. Edward Parnall, an orthopedic specialist. Dr. Parnall examined plaintiff for the first time on April 7, 1953, and diagnosed his trouble as a torn cartilage, suffered when he slipped and fell, twisting his left knee. The condition of the knee seeming to demand surgery, Dr. Parnall performed an operation on the knee on April 20, 1953, about two weeks following his initial examination of plaintiff. The surgeon described the condition found to exist when the injury was exposed in the course of the operation, as follows:

'In his case I did find out there was a tear of the internal semi-lunar cartilage of the left knee. That is what is known as the medial menicus, which is a half-moon shaped cartilage, which in this case had torn, and attached itself to the inner edge.'

The healing period following the operation was 12 weeks, during which time he was paid maximum compensation at the rate of $30 per week and all of his medical and hospital expenses as well. Indeed, for several weeks immediately following his injury, as stated above, the plaintiff was kept on the payroll and was paid his normal weekly salary of $115 per week.

The healing period having passed, the plaintiff was employed as an ironworker by the Austin Company, working for a short time on the Fedway Building in Albuquerque, then under construction, as a general foreman. Very soon, however, his employer transferred him to the Albuquerque Publishing Company job then under way. He stayed on that job until completion of the building. Upon completion of this building, he accepted another job as general foreman from Lembke, Clough & King, Inc., a general contracting corporation of Albuquerque.

The Lembke Company was then engaged in the construction of the Simms Building in Albuquerque. The plaintiff remained on this job from October, 1953, until May, 1954, at a salary in excess of what he was receiving from defendant, the McKee Company, at the time of his injury. With the completion of the ironwork on the Simms Building nearing, the plaintiff was offered a job as an ironworker foreman by F. E. Bratton, ironworker contractor in Albuquerque, which job he took and was still holding at the time of the trial.

The trial judge submitted the matter of plaintiff's claim to the jury which returned a verdict in his favor, reading:

'We, the Jury, find the issues in favor of the Claimant and find that his accident caused him permanent partial disability which extended beyond the left leg to his other bodily functions and disabled him in the amount of 47 percent.'

A judgment conforming to the verdict was entered on July 28, 1954, against the defendants, employer and insurer, the pertinent paragraph of which is, as follows:

'It is therefore ordered, adjudged and decreed that the claimant do have and recover from the defendants 47% of $30 a week commencing the 15th day of October, 1952 and continuing until the further order of the Court but in no event to exceed 550 weeks.'

In addition to the award for claimant's personal benefit, the court gave him judgment in the sum of $1,250 as attorneys' fees for the benefit of the attorneys representing him in the prosecution of this claim. This appeal followed in which the defendants ask a reversal and the award of a new trial.

The principal question presented and argued is the claim urged upon us by defendants' counsel that the evidence is wholly lacking to support any award for bodily injury beyond that accruing to the left knee. They point out that the scheduled awards for the loss of a leg above the knee and below the knee, as set out in 1953 Comp. Sec. 59-10-18, are, as follows:

'(30) One leg at or above the knee where stump remains sufficient to permit the use of an artificial limb, 130 weeks

'(31) One leg between knee and ankle, 120 weeks'

It is pointed out by counsel for the defendants that had claimant suffered a complete severance of his left leg at the knee he would have been entitled to compensation of $30 per week for only 130 weeks, or a total of $3,900. Yet by the jury verdict he is to receive $7,755, or $3,855 more than is called for by the award for the only scheduled injury that suggests itself as applicable. They insist there is no basis in the evidence for such an award as the jury made. Thus is presented the major legal question we are called upon to decide. It was presented below by appropriate motion for directed verdict and for new trial and is here made the basis of the chief claim of error. We have given the matter the most careful consideration. Yet, notwithstanding some misgiving and an understandable reluctance which have pointed the decision first this way and then that, we are finally convinced it was for the jury and not ourselves to say where the truth lay and bring in its verdict accordingly. Having done so, we are bound by that conclusion and may not overturn the verdict, however strongly we may feel that, had we occupied the jury box, we should have brought in a different verdict.

The principal issue on the facts resolved around the injury to his back which plaintiff claimed to have suffered from the damaged knee. Three separate doctors, orthopedic surgeons, one of whom operated on the injured knee, each in turn testified he heard of pain in the back for the first time at the trial. This is a damaging fact, if claimant actually then suffered the pain he testified to. Nevertheless, one of the physicians mentioned testifying as an expert, gave it as his opinion that a knee injury such as plaintiff suffered could cause the pain he testified to, and is referable to the knee injury. In addition, fellow workmen told of noticing difficulty with which, following the operation, the plaintiff was able to perform heavy lifting tasks which he formerly did with ease. His weight had dropped from about 192 pounds before the injury to 175 pounds. His initial testimony concerning the back injury claimed came out, as follows:

'Q. Have you been able, at any time, to perform the usual and substantial duties of a steel worker, since your injury of October 15th, 1952? A. No, not actual working in the gang, I have tried, and I come home, as a result, with swollen knee, and pain, and I lost time quite a bit of time, because of it.

'Q. Now, when you are trying to work, what sensation, if any, do you have, other than normal? Do you feel okeh, all of the time, or do you have any pain? A. No, I don't. I am always bending, or having to bend my knee, and it is always aching, and I just haven't felt right.

'Q. And is the pain you have, confined to your knee? A. Well, I have had--I don't know whether it has anything to do with it, but my back bothers me, sometimes, a little. Mornings, when I get up, I can hardly put my foot to the floor. Of course, I have to move around an hour or so, then it limbers up, pretty good.

'Q. And where does it bother you? Just what part of you? A. You mean my back?

'Q. Yes, the small of your back? A. My back, way down low.

'Q. You say you have trouble bending over, what do you mean by that? A. Well, it is kind of stiff.

'Q. Through the back? A. Yes. Way down the small of the back.'

It is unnecessary, however, to attempt to glean from the record all bits of testimony bearing on the vital issue of whether the plaintiff actually had an injury to his back which was traceable to the injury to his left knee. Suffice it so say, however, and speaking figuratively, by sifting the record with a fine tooth comb, as claimant's counsel have done, they have been able to come up with enough evidence to meet the test of substantiality.

It is insisted by counsel for defendants, however, that under the doctrine of James v. Hood, 19 N.M. 234, 142 P. 162, 163, the district judge should weigh the evidence and

'where it clearly appears that the jury have failed to respond truly to the real merits of the controversy, and justice has not been done, he should unhesitatingly set the verdict aside.'

In other words, counsel would have us apply the doctrine they read from this case. Succinctly put counsel's position is that in ruling upon the claim of error on the trial court's action in denying their motion for new trial, viz., that...