Sanchez v. City of Albuquerque

• Decision Date: 26 April 1965
• Docket Number: No. 7541,7541
• Citation: 1965 NMSC 43,401 P.2d 583,75 N.M. 137
• Parties: Tony SANCHEZ, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a Municipal corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 583

401 P.2d 583

75 N.M. 137

Tony SANCHEZ, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a Municipal corporation Defendant-Appellant.

No. 7541.

Supreme Court of New Mexico.

April 26, 1965.

Frank L. Horan, Threet, Threet, Glass & King, Albuquerque, for appellant.

Smith, Kiker & Ransom, Albuquerque, for appellee.

CARMODY, Chief Justice.

The city appeals from an award of partial permanent disability in the amount of 70% in favor of appellee Sanchez.

Summarizing the facts found by the trial court, it appears that from 1948 to January 1, 1962, Sanchez was employed as a fire truck driver by the city; that over an indefinite period prior to December 28, 1961, the workman sustained a gradual progressive injury consisting of loss of hearing (total and permanent loss to the left ear and 38% permanent loss to the right ear), an anxiety state and high blood pressure with resulting nervousness, vertigo, dizziness and severe headaches; that the injury was a natural and direct result of an accident or accidents arising out of and in the course of his employment; that the accidental injury progressed to compensability on December 28, 1961, when claimant consulted Dr. McCullough; and on January 9, 1962, a notice was given to the fire chief from the doctor that the workman was suffering from a compensable injury. The court also found 'that on or about January 9, 1962, and within 30 days of December 28, 1961, the time at which plaintiff Tony Sanchez first knew or should have known by the exercise of reasonable diligence that he was suffering any compensable injury by accident in the course of his employment, defendant City of Albuquerque had actual knowledge of the accident and injury.' Another finding which was pertinent was to the effect that the claimant had suffered and will continue to suffer 'a loss of his wage-earning ability, and is 70% partially and permanently disabled * * *.' The court also made a finding that the claimant's disability as a medical probability was the natural and direct result of an accident or accidents arising out of and in the course of his employment, although his disability might be attributable in part to physical conditions existing prior to any accident or accidents.

The city relies on two points for reversal, which we will discuss in the order presented.

First, the city claims that the court erred in refusing to conclude that the plaintiff had not established a claim upon which relief could be granted. As nearly as we can understand the city's assertion, it is that there was no showing of any average weekly wage after disability, that there is no evidence of any such wage, and that therefore, under the provisions of Sec. 59-10-18.3, N.M.S.A.1953, prior to its amendment in 1963, the court could not calculate the degree of claimant's partial disability.

In connection with this point, claimant strongly asserts that the city failed to properly attack the court's finding of fact as to the percentage of disability and that this point should be disregarded. However, it is clear that the city actually attacks the finding made by the trial court, even though its point relied upon for reversal refers only to the trial court's refusal to adopt the conclusion of law requested by the city. We believe there is a sufficient compliance with Supreme Court Rule 15(6) (Sec. 21-2-1(15)(6), N.M.S.A.1953), as is explained in Alvarez v. Alvarez, 1963, 72 N.M. 336, 383 P.2d 581.

Proceeding, then, to the merits of the claimed error, it is true that the record fails to show that the claimant earned any wage after the notice of disability. The city seems to urge that the trial court failed to consider that the workman declined a different type of work offered him by the city, and that this is a showing which bears upon the lack of evidence of subsequent wages. Suffice it to say in this connection that the job offered was also in the fire department and the claimant felt that he could not handle the job because of the difficulty with his hearing. The evidence bearing upon employment after the injury was that the claimant was not able to perform work in his own yard without becoming dizzy, together with certain medical testimony that he was disabled insofar as doing heavy work, or work which concerned the sounding of sirens and other matters related to fire department activities. We would add that the record indicates that, other than the training received from the fire department, Sanchez was qualified to do nothing other than manual labor. When this proof is coupled with the evidence that Sanchez could not perform heavy, difficult labor, it is clear that there is substantial evidence of disability.

We have and occasion to consider the meaning of Sec. 59-10-18.3, supra, in several cases. Specifically, see, among others, Winter v. Roberson Construction Company, 1962, 70 N.M. 187, 372 P.2d 381, 96 A.L.R.2d 933; Pies v. Bekins Van and Storage Company, ...