Ritter v. Albuquerque Gas & Elec. Co.

• Decision Date: 19 October 1943
• Docket Number: No. 4774.,4774.
• Court: New Mexico Supreme Court
• Parties: RITTERv.ALBUQUERQUE GAS & ELECTRIC CO.

47 N.M. 329

142 P.2d 919

RITTER

v.ALBUQUERQUE GAS & ELECTRIC CO.

No. 4774.

Supreme Court of New Mexico.

Oct. 19, 1943.

Appeal from District Court, Bernalillo County; Albert R. Kool, Judge.

Action by Guy Ritter against Albuquerque Gas & Electric Company to recover for breach of defendant's contract to employ plaintiff for life upon plaintiff's agreement to forebear to file claim for workmen's compensation. Defendant's motion to dismiss the complaint was sustained, and plaintiff appeals.

Reversed with instructions.

Generally, a court or industrial commission has no power to entertain proceedings for approval of an agreement as to workman's compensation between employer and injured employee except such as is conferred by statute.

Joseph L. Smith and Mechem & Hannett, all of Albuquerque, for appellant.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellee.

MABRY, Justice.

Plaintiff, appellant, brought suit against defendant, appellee, the court sustained a motion to dismiss the complaint and this appeal resulted.

Omitting formal matters, appellant's complaint alleged:

“That in the month of November, 1923, the plaintiff was employed by the defendant as an electrician at the average monthly wage of $250.00 per month, and that on the 3d day of November, 1923, the plaintiff fell to the ground from an electric light pole while engaged in the service of the defendant, such fall causing severe and permanent injury to his left leg, arm, and side, and said injuries resulting in permanent partial disability from that date.

“That immediately after said injuries were sustained by the plaintiff, it was agreed between the plaintiff and defendant that the plaintiff would forbear to file his claim for compensation under the Workmen's Compensation Act in consideration of the defendant's continuing the plaintiff in its employ at the average monthly salary of $250.00 per month, which agreement was carried out between the plaintiff and defendant until the month of August, 1939, at which time it became apparent that the plaintiff's injuries so sustained as aforesaid were so severe and the results thereof were such that he would never again be able to enter upon the gainful pursuit of his regular occupation, to-wit, electrician, because of his physical disability. It was thereupon agreed by and between the plaintiff and defendant that said original contract should be modified as follows, to-wit: that the plaintiff should remain in the service of the defendant during the rest of his natural lifetime and do such work as he was able to do as a common laborer or otherwise, and thereupon and thereafter said agreement was carried out and the plaintiff was employed in the meter room of the defendant, and said contract was carried out by each of the parties thereto up to and until the 11th day of December, 1942, when the defendant wrongfully breached said contract and dismissed plaintiff from its service, and has ever since failed, neglected and refused to pay him his compensation in the sum of $125.00 per month.

“That the plaintiff up to the time of said dismissal had performed all duties required and requested of him by the defendant in the performance of said contract and was then and there and still is ready and willing to perform the obligations of said contract, encumbent upon him to be performed, but the defendant without cause breached said contract, as aforesaid.”

The motion to dismiss the said complaint reads: “The complaint fails to state a claim upon which relief can be granted.”

Appellant assigns error under two points, namely: (1) The court erred in sustaining the motion to dismiss, general in terms, for the reason that such general motion did not advise plaintiff of the points, questions, or principles of law upon which the defendant relies to support its motion; and (2) the court erred in sustaining the defendant's motion to dismiss the plaintiff's complaint.

[1] Under the first point argued, we have a practice question. Any decision upon this first assignment would not affect the result to be arrived at under the second, but counsel for both parties urge us to notice and decide the question, as one which might now well be settled or clarified as our newly adopted rules come into operation. We do not agree with appellant in his appraisal of the rule in question (Rule 12 (b) 6, of the Rules of Civil Procedure for the District Courts, Effective August 1, 1942), under which appellee moved. He contends that the motion to dismiss did not sufficiently state the grounds upon which it was based; that, in reciting no more detail than as is hereinbefore shown to be contained in the motion, it was not a compliance with the rule. Subdivision 6 of the rule requires the movant to allege a “failure to state a claim upon which relief can be granted”.

The rule in question, together with Rule 7 (b) requiring that all applications to the court for an order shall be by written motion which “shall state with particularity the grounds therefor” and to set forth the relief or order sought, are in the exact language of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which rules we have adopted, with some considerable modification and omissions. Under Rule 12 (b) 6 a motion to dismiss is properly granted, we hold, only when it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief.

[2] Appellee relies upon numerous authorities to support its position that the motion was sufficient, absent any request on the part of appellant for more “particularity” such as is provided for by Rule 12 (e). The record discloses no motion on the part of appellant “for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable it (him) to properly prepare its (his) responsive pleading or to prepare for trial”. Rule 12 (e). Rule 7 (c) specifically provides that “demurrers, pleas and exceptions for insufficiency of a pleading shall not be used”. Clearly Rule 12 (b) 6 supersedes Sec. 105-412, Comp.Laws 1929, upon which appellant relies; and, therefore, many of the New Mexico decisions which he cites and relies upon are not now in point. It is true that under Sec. 105-412, supra, now superseded by the rule as above shown, we have held that a demurrer stating simply that the complaint did not state “facts sufficient to constitute a cause of action” was insufficient (Williams v. Kemp, 33 N.M. 593, 273 P. 12, 16; General Motors Acceptance Corp. v. Ballard, 37 N.M. 61, 17 P.2d 946), but this procedural statute now being superseded by the rules hereinabove cited, 12 (b) 6, 12 (e), and 7 (c), the authority relied upon is obviously, no longer controlling.

[3] Rule 12 (e) affords parties who desire more particularity before responding to a pleading all the aid necessary. The first point urged is, therefore, without merit. See 1 Moore's Fed. Practice, p. 428; 17 Hughes' Fed. Practice, p. 286, sec. 19533; 4 Moore's Fed. Practice, p. 156, form 12.06; 4 Moore's Fed. Practice, p. 166, form 12.21 and note; Leimer v. State Mutual Life Assur. Co., 8 Cir., 108 F.2d 302; Karl Kiefer Mach. Co. v. U. S. Bottlers Machinery Co., 7 Cir., 113 F.2d 356; Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865; Keasbey & Mattison Co. v. Rothensies, D.C., 1 F.R.D. 626; Mahoney v. Bethlehem Eng. Corp., D.C., 27 F.Supp. 865; Eberle v. Sinclair Prairie Oil Co., D.C., 35 F.Supp. 296; United States v. Elm Spring Farm Co. et al., D.C., 3 F.R.D. 43.

The second point involves the right of appellant, under the circumstances of this case, to so compromise and settle its claim with appellee. Appellant argues that since, through our Workmen's Compensation Act, the legislature has not by positive enactment deprived litigant of the right to compromise and settle such claim without the approval of court, this right obtains as a constitutional right that cannot be impaired.

The only statute touching upon the authority of the court to authorize or approve any settlement made by the parties is found in Sec. 13, Chap. 83, Laws of 1917 (1941 Comp. sec. 57-913), which applies to settlements made after the filing of a claim-which could not be applied here- and Sec. 24 of the same act, 1941 Comp. sec. 57-925. Section 13 provides in substance that after the filing of his claim the employer “shall be allowed 20 days thereafter to answer the same or settle and adjust the claim thereby made by such workman”. There is further provision that in event the employer “shall file in the office of such clerk a written final settlement, adjustment, or release signed by such plaintiff and defendants then and in such event a judgment shall, under order of court, be entered of record in accordance with such settlement, ***”.

[4] Section 24, so far as pertinent to the question before us, provides: “The district court in which the right to compensation provided herein is enforceable shall at all times have the right and power to authorize, direct or approve any settlement or compromise of any claim for compensation hereunder by any injured workman or his personal representative or dependents, *** for such amount and payable in installments or lump sum or in such other way and manner as the court may approve.” This section clearly empowers the district court to “authorize, direct or approve any settlement or compromise of any claim for compensation” brought to it; but this is not to say that such authorization, direction or approval is invariably required.

The significance of a portion of Section 13 which precedes that portion of the section heretofore referred to and quoted from must not be overlooked. We find there this pertinent provision: “In the 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,...