Reed v. Fish Engineering Corp.

• Decision Date: 02 March 1964
• Docket Number: No. 7301,7301
• Citation: 390 P.2d 283,74 N.M. 45,1964 NMSC 42
• Parties: H. E. REED, Plaintiff-Appellant, v. FISH ENGINEERING CORPORATION, Employer, and Continental Casualty Company, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 283

390 P.2d 283

74 N.M. 45

H. E. REED, Plaintiff-Appellant, v. FISH ENGINEERING CORPORATION, Employer, and Continental Casualty Company, Insurer, Defendants-Appellees.

No. 7301.

Supreme Court of New Mexico.

March 2, 1964.

Palmer & Frost, Farmington, for appellant.

Adams & Pongetti, Albuquerque, for appellees.

OPINION ON MOTION FOR REHEARING

PER CURIAM:

Upon consideration of motion for rehearing, the original opinion heretofore filed is withdrawn and the following substituted therefor:

OPINION

MOISE, Justice.

The record in this case presents a somewhat confused picture as to exactly what transpired in disposing of the issues presented by the pleadings.

On October 12, 1961, claimant filed a complaint seeking workmen's compensation benefits from his employer and his employer's insurer. This was followed by an amended complaint, the material allegations of which were to the effect that on July 26, 1959, claimant, a New Mexico resident, had been hired by the employer at Farmington, New Mexico, to work as a carpenter; that on July 29, 1959, claimant was injured in an accident arising out of and in the course of his employment as a carpenter when he fell through a roof and to a concrete floor on a job of employer at or near Aneth, Utah; that claimant had not been assigned or permanently transferred outside the state of New Mexico by employer; that claimant's earnings were in excess of $25.00 per day; that compensation was voluntarily paid to within one year of the date of filing the complaint; that as a result of the accident claimant incurred permanent and total disability and medical expenses.

Defendants filed an answer admitting the employment in the State of Utah, as well as the accidental injury at the time and place alleged by claimant, and that claimant was earning the amount claimed when injured, but denied all other allegations. They further alleged that they had never paid claimant any compensation under the New Mexico Workmen's Compensation Act; and that no suit had been filed within one year after refusal or failure to pay such compensation, and that the claim was barred under Sec. 59-10-13.6, N.M.S.A.1953; that claimant had made claim and had accepted compensation under the Utah Workmen's Compensation Act and was accordingly estopped to make such claim under the New Mexico act; that no contract of employment was entered into, nor was plaintiff injured in New Mexico.

Defendants also filed a motion for summary judgment asserting that no genuine issue of material fact was present, to which motion were attached certain affidavits. A number of counter affidavits also appear in the file. Counsel for defendants gave notice of hearing on their motion for March 14, 1962, at 2:00 P.M., and the court gave notice of 'Pre-trial, and on defendants' affirmative defense of action being barred' for the same date, as 2:30 P.M. No order was ever entered reflecting any action at such hearings.

However, some discussion appears between court and counsel when the matter came on for trial, indicating an understanding that two issues were to be tried, viz., whether claimant was employed in New Mexico to do work outside the state, or whether he was employed in Utah; and secondly, whether claimant was entitled to medical expenses under New Mexico law. Evidence was introduced on these issues by both parties. Thereafter, the parties submitted their requested findings of fact and conclusions of law, and the court made findings and conclusions. A judgment was entered in favor of defendant dismissing claimant's amended complaint. The judgment recites that the cause came on for trial 'upon the issues remaining after the entry of a partial summary judgment previously filed herein, under which the court held that based upon the undisputed facts as shown by affidavits and counter-affidavits, plaintiff's claim for compensation under the New Mexico Workmen's Compensation Act is barred by the provisions of Section 59-10-13.6, 1953 N.M.S.A. and that the cause would proceed to trial upon the issues raised by the pleadings as to plaintiff's claim for medical expense only.' Whereas it appeared at the outset of the trial that two issues remained, the judgment recites that the issue of medical expense was the only matter to be considered at the trial. Beyond this, the court made findings of fact, on all the issues, as follows:

'1. Plaintiff was first employed by Fish Engineering Corporation in the State of Utah in the year 1958. After working there for some time, he was transferred to New Mexico, where he continued to work for the defendant, Fish Engineering Corporation, at their Chaco plant in San Juan County. About a month prior to July 26, 1959, the plaintiff voluntarily quit this employment.

'On or about July 26, 1959, the plaintiff talked in Farmington, New Mexico, with J. B. Davis, a carpenter foreman employed by Fish Engineering Corporation at its plant in Aneth, Utah, and was told by Mr. Davis that the work to be done at Aneth, Utah, would last for approximately six to eight months. There was no discussion about work at any other place for Fish Engineering Corporation, this being the only job and the only location mentioned to the plaintiff. Plaintiff was not hired, nor was he regularly employed in this State to do the work in which he was engaged at the time of the accident on July 29, 1959, upon which his claim is based.

'2. Plaintiff departed from the State of New Mexico shortly after July 26, 1959, and his departure from this State was caused by a permanent assignment.

'3. The said J. B. Davis had no authority to enter into any employment contract on behalf of Fish Engineering Corporation except at the job site in the State where the work was to be done, which in this case was at Aneth, Utah.

'4. While employed by defendant, Fish Engineering Corporation, at Aneth, Utah, on July 29, 1959, the plaintiff sustained an injury by accident arising out of and in the course of his employment as a carpenter, at which time his earnings were in excess of $25.00 per day.

'5. Subsequent to said injury, the plaintiff was paid by defendants and accepted certain benefits accruing to him under the Utah Compensation Act, but the defendants never paid plaintiff any installment of compensation as provided by the Workmen's Compensation Act of New Mexico.

'6. Plaintiff did not file a claim for compensation under the New Mexico Workmen's Compensation Act within one year after the failure or refusal of defendants to pay such compensation, the claim herein having been filed on October 12, 1961.'

No order of partial summary judgment was ever entered. As a matter of fact, we do not understand how any of the issues could have been disposed of by recourse to summary judgment. As we have said time and again, summary judgment should not be granted where disputed issues of material fact are present. Sooner Pipe & Supply Corp. v. Doerrie, 69 N.M. 78, 364 P.2d 138; Buffington v. Continental Casualty Co., 69 N.M. 365, 367 P.2d 539; Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand & Gravel, Inc., 70 N.M. 144, 371 P.2d 795. In addition, all doubts as to the existence of an issue of fact are to be resolved against the one seeking summary judgment. McLain v. Haley, 53 N.M. 327, 207 P.2d 1013; Ballard v. Markey, 66 N.M. 265, 346 P.2d 1045; Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand & Gravel, Inc., supra.

Issues of fact as to the place of hiring and concerning whether compensation had been paid under the Utah or New Mexico law were present. That the same were not properly for resolution on summary judgment is made amply clear by our decision in Armijo v. United States Casualty Company, 67 N.M. 470, 357 P.2d 57. Defendants point out that at the time Armijo was tried, questions of fact in workmen's compensation cases were triable to a jury, and that this is no longer true, and that in Armijo a fact question of late filing was also present. We do not think the cases are distinguishable on either basis. If there is a dispute in the facts to be submitted to a jury, there is present a sufficient issue of fact to require a determination by the court as trier of the facts where no jury is provided, and summary judgment would not be appropriate. This was clearly pointed out in Southern Union Gas Company v. Briner Rust Proofing Company, 65 N.M. 32, 331 P.2d 531, where we said, 'In summary judgment proceedings the burden rests upon the movant to show there is no genuine issue or [sic] material fact to submit to a fact finder, be it a court or jury.' Defendants assert that the court decided the fact issues and made findings of fact which have not been attacked by claimant and that any error was thereby cured. It appears that the court concluded the claim was barred when it decided the motion for summary judgment. No evidence was offered or received on this issue at trial.

In conformity with the discussion between the court and counsel at the outset of the trial, this subject was not gone into. Accordingly, the question which we must determine is whether a material issue of fact was present concerning whether payments were made under Utah law, and if so did they effect a waiver or estoppel of claimant to any right to claim benefits under the New Mexico law? We are clear that an issue of fact was present, and that the affidavits before the court prior to trial could reasonably raise an inference which would have supported a finding that payments were not made or knowingly received under the Utah law so as to bar this action. Hewitt-Robins, Inc., Robins Conveyors Division v. Lea County Sand & Gravel, Inc., supra. Beyond this, we doubt if it makes any difference.

Although claimant had been paid $37.00 per week from the date of this injury up to and including June 2, 1960, and again from November 29, 1960 to August 7, 1961, and although a form described as a Notice to Applicant for Medical Advisory Board Examination...