Robinson v. Mittry Bros.

• Decision Date: 02 August 1939
• Docket Number: No. 4405.,4405.
• Citation: 43 N.M. 357,94 P.2d 99
• Parties: ROBINSONv.MITTRY BROS. et al.
• Court: New Mexico Supreme Court

43 N.M. 357

94 P.2d 99

ROBINSON

v.MITTRY BROS. et al.

No. 4405.

Supreme Court of New Mexico.

Aug. 2, 1939.Rehearing Denied Sept. 21, 1939.

Appeal from District Court, Sierra County; Eugene D. Lujan, Judge.

Action by A. L. Robinson, employee, against Mittry Brothers, a corporation, employer, and the Hartford Accident & Indemnity Company, insurance carrier, to recover compensation under the Workmen's Compensation Act for injuries sustained in the course of plaintiff's employment. Judgment for plaintiff, and defendants appeal.

Affirmed.

In action for compensation under Workmen's Compensation Act whether plaintiff should be allowed attorney's fees is question for court, not jury. Comp.St.1929, § 156-101 et seq.

W. C. Whatley, of Las Cruces, for appellants.

Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, and J. C. Gilbert, of Hot Springs, for appellee.

BRICE, Justice.

The appellee filed a claim under the New Mexico Workmen's Compensation Act, Comp.St.1929, § 156-101 et seq., alleging in substance that he was employed by the appellant, Mittry Brothers (hereinafter called appellant); that he was injured in the course of his employment and that appellant refused to pay compensation except in a small amount alleged. That “such injury has caused the ligaments in each side of said claimant to be torn loose, causing claimant to suffer great pain and has caused a total and permanent disability on the part of the claimant, and is now, and ever since the date the same was suffered, total, in that claimant has been unable to resume his regular employment.” The appellant, Hartford Accident & Indemnity Company (hereinafter called the insurer) is admitted to be the insurer of appellant and is liable for statutory damages if appellant is so liable.

The appellants answered, admitting the appellee's employment and further,

“That they deny that plaintiff was injured in the manner and to the extent set forth in his claim; and on information and belief allege the fact to be that the plaintiff has an old injury received before he ever went to work for the defendant Mittry Brothers, and that his disability, if any, resulted from said old injury, and not from any injury received while he was in defendant Mittry Brothers employ.

“That they admit that defendant Hartford Accident and Indemnity Company paid to the plaintiff the sum of $67.50, but they deny that said indemnity company failed and refused to make any further or additional payments and deny that it became and was necessary for plaintiff to employ counsel to prosecute any claim he had.”

The case was tried to a jury, resulting in the following verdict: “We the jury find the issues in favor of the plaintiff and assess his compensation at $16.80 per week from August 23rd, 1937 to December 23rd 1942, or two hundred seventy five weeks from August 23, 1937.”

[1] At the outset, the defense that the condition of appellee was caused in whole or in part by disability resulting from an old injury, and not from any injury received while in the employ of the appellant, may be disposed of. We have carefully examined the testimony regarding the old injury and find no substantial pertinent testimony sustaining this defense. The testimony of appellants' witness clearly establishes the facts to be otherwise. He stated that the two injuries were not in the same location in appellee's back, and that appellee could not have performed the heavy physical labor he had been engaged in for some months, if he had not fully recovered from the injury suffered in 1935.

[2][3] The appellants have entirely ignored Sec. 14 (5) of Supreme Court Rule XV, which required them to present points, or legal propositions as a basis for their arguments. The argument is in three divisions, none of which is preceded by a point or proposition of law as a basis for its support. In the first division are copied an assigned error based upon the trial court's refusal to sustain a motion for judgment, wherein it is charged that there was not substantial evidence to support the verdict of the jury; another upon a motion for judgment non obstante veredicto, in which it is charged that there is a variance between the special findings of the jury and the general verdict; and four others, based upon the failure of the court to give to the jury four requested instructions upon the subjects of the preponderance of evidence and burden of proof; all followed by an argument principally upon the point (not made) that there was no substantial evidence to support the verdict of the jury. It is true that more than one error assigned may be presented under one point; but only in case they are all germane to it, and a decision of the question presented will dispose of all of them. Not less than three distinct points or propositions of law, with appropriate argument under each, are required by the rule to properly present these six assigned errors for review.

[4] What we have here is one continuous argument without a point or legal proposition as a basis, largely to the effect that there is no substantial evidence to support the verdict of the jury. For the convenience of this court and opposing counsel, the rule requiring the presentation of points or propositions of law as a basis for argument, should not be ignored. Indianapolis & Cincinnati Traction Co. v. Senour, 71 Ind.App. 10, 122 N.E. 772; Cretchen v. Winona R. Co., 209 Ind. 414, 199 N.E. 241; Loving v. Atlantic Southern R. Co., 184 Iowa 435, 168 N.W. 910; Cornner v. Hamilton, 62 Mont. 239, 204 P. 489; Stephan v. Stephan, Mo.App., 242 S.W. 424, 425.

In deference to appellants' very able argument we will supply points not waived.

[5] The following is the substance of the material testimony:

The appellee Robinson testified that while driving a truck loaded with dirt, up a hill, it slipped out of gear and started to roll back; that he pushed with all of his strength upon the brake, trying to stop the car but could not do so, which resulted in the injury hereafter stated. The car was caught before going to the bottom of the hill, by a bulldozer, which pushed it to the top. He described his injury in substantially the following words: “It felt like something grinding into bits and just like getting a fat piece of meat into your hand and squashing it. By staying in a sitting position and well braced, I was able to go ahead and make the shift.” He stated that he was badly hurt and asked to be taken in the cab of a pickup that was going to town; and, “I had to sit in this position (holding his sides by his hands) all the way to town because I hurt a lot when sitting down.” He went to bed and called a doctor next morning, who bandaged him and gave him some tablets. The second day he went to Dr. Leslie's hospital, where he remained twenty-six days. He had not been able to do any work since his injury (six months) except to wait on a few customers at his wife's store. He was asked: “In what way do you suffer now, if any?” And answered: “Well, Sir, my back just hurts all over on both sides, not just a little bit either. It hurts very bad at all times when I ride a little way. When I get out and walk three or four blocks it hurts.”

Dr. Frank Leslie testified that he examined the appellee after his injury and found him suffering a great deal of pain in the lower part of his back, with spastic condition of all muscles of the back. He was unable to turn over or get about by himself. He was discharged from the hospital as relieved, on September 13, 1937.

“Now, Doctor, in your opinion and from what you know of this man and his condition, would you say now that he is totally and permanently disabled and unable to continue the work that he was doing at that time?” A. “Yes, Sir.”

“Do you say that he has been able to do that work at any time since he was hurt?” A. “No, he could do work sitting down; and light work, but not heavy work like driving a truck. He was permanently disabled from doing it.”

Dr. H. J. Maloney testified that he had examined the appellee's back; that he had a severe muscular strain in the lower region (indicating a space around the region of the kidneys) resulting from a severe strain. He did not believe that he would ever be able to return to his former occupation, although he could do work that did not require much physical effort. That the injury was affecting his body elsewhere, the nature of which was hard to tell; that he would not be positive in his diagnosis as he was not equipped for it. “He would have to have a stereoscopic examination from the X-ray. The conditions indicate other trouble besides the muscular strain. There is something else involved.” He was of the opinion that appellee would never be able to do the character of work he had been doing. Other witnesses testified regarding appellee's injury, about which there could be, and is, no question except as to its nature and extent.

The appellant had the appellee examined by Dr. Frank Goodwin, a physician and surgeon, who stated that appellee was a sick man; that he was unable to determine whether or not he was totally and permanently disabled. He did not believe that the ligaments of his back were torn or injured, but he did not know the nature of the injury. He further stated: “I don't believe it was possible for him to have had the injuries he claimed to the ligaments in his back. I don't believe that his musculatures were strong enough to tear the ligaments. Since I first saw him I have stated there was something wrong with him but I don't know what it is. His having gone to work, his weight, etc., indicates that he had recovered from his first injury. His first injury was between and just below his shoulders and not below the small of the back.” On a hypothetical question, the doctor gave it as his opinion that the trouble was “due to an abnormal fifth lumbar vertebra and the spinal dorsal-the last backbone in the spine. They are absolutely not due to tearing of ligaments of...