Taylor v. Am. Employers' Ins. Co. of Boston

• Decision Date: 13 August 1931
• Docket Number: No. 3575.,3575.
• Citation: 35 N.M. 544,3 P.2d 76
• Parties: TAYLORv.AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS., et al.
• Court: New Mexico Supreme Court

35 N.M. 544

3 P.2d 76

TAYLOR

v.AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS., et al.

No. 3575.

Supreme Court of New Mexico.

Aug. 13, 1931.Rehearing Denied Oct. 5, 1931.

Syllabus by the Court.

Requirement that employee file compensation claim within 60 days held absolute limitation on right of action, not subject to waiver or estoppel (Comp. St. 1929. §§ 156-105, 156-113).

The requirement of the New Mexico Workmen's Compensation Act, chapter 83, Laws 1917 (as amended) that the employee must file his claim for compensation in the office of the clerk of the district court not later than sixty days after the refusal or failure of the employer to pay the same, is a limitation on the right of action, which is wholly statutory, and not a mere limitation on the remedy, and is absolute and unconditional, and not subject to pleas of waiver or estoppel.

Appeal from District Court, Eddy County; Richardson, Judge.

Proceedings under the Workmen's Compensation Law by J. Will Taylor, opposed by the American Employers' Insurance Company of Boston, Mass., insurer, and another. From a judgment dismissing the claim, claimant appeals.

Affirmed, and cause remanded.

Requirement that employee file compensation claim within 60 days being absolute limitation on right of action, is not subject to waiver or estoppel. Comp.St.1929, §§ 156-105, 156-113.

James W. Stagner and Caswell S. Neal, both of Carlsbad, for appellant.

H. B. Hamilton, of El Paso, Tex., for appellees.

BICKLEY, C. J.

Under the Workmen's Compensation Law, appellant filed a claim for compensation for an injury suffered by him. A plea was filed by the appellee, insurer, wherein it was asserted that said claim was barred because filed too late. By amended petition and claim for compensation, and by way of avoidance of appellee's contention that the claim of appellant was barred, facts were alleged which we assume (though not deciding) withstand a demurrer presented thereto, to the effect that claimant was led by the representations of the appellee insurer to believe that payment of the claim was not refused, that it would be paid, and, relying upon such representations and belief, he did not file his claim within the time required by the statute.

To this amended claim, appellee insurer filed its plea in the form of a demurrer, contending: (1) That the claim for compensation of appellant was barred because not filed in time; (2) that the plea of avoidance did not state facts sufficient to toll the statute against the defendant insurer.

The matter was presented to the court upon the amended claim and the plea thereto, and the court sustained the plea, and, the appellant electing to stand, the court dismissed the claim of appellant.

Appellant states that the sole question on this appeal is whether or not matter alleged in avoidance of the bar stated facts sufficient to toll the statute requiring claim to be filed within the terms designated or to estop appellee from pleading such statute as a defense and to permit recovery, notwithstanding the failure of appellant to file his claim within the period mentioned in the Compensation Act.

This really involves two questions. It is conceded that, if the doctrine of waiver or estoppel may not be invoked in respect to the limitations of time for taking certain steps by the injured workman, then the decision in Caton v. Gilliland Oil Co., 33 N. M. 227, 264 P. 946, 947, is controlling. In that case we said: “An employer having knowledge of the injury, must, within 31 days after its occurrence, pay the first installment of compensation. If the employer fails or refuses so to do, the workman must, within 60 days thereafter, file his claim for compensation. If he does not, his claim, his right, and his remedy are forever barred.”

This principle was adopted and the decision followed in Mumford v. State Highway Commission of N. M. et al. (N. M.) 1 P.(2d) 115, decided May 7, 1931. In neither of those cases was the question of waiver or estoppel alleged to be present.

Coming then to this question, we find courts of other jurisdictions announcing the doctrine of the Caton Case in the face of claims of waiver and estoppel. The Circuit Court of Appeals of the Ninth Circuit in Rogulj v. Alaska Gastineau Mining Co. (April 2, 1923) 288 F. 549, 550 said: “The right of action created by the Alaska act is wholly statutory, and must be accepted with all the conditions and limitations imposed by law. The service of notice of claim upon the employer within 120 days from and after the death of the employee is a limitation upon the right, and not a mere limitation upon the remedy. This requirement of the statute is absolute and unconditional. If the notice is not served, there is no right of action, and pleas of war conditions, waivers, and estoppels are of no avail. In re Murphy, 226 Mass. 60, 115 N. E. 40; In re Gorski, 227 Mass. 456, 116 N. E. 811; Poccardi v. Ott, 83 W. Va. 166, 98 S. E. 69; Industrial Commission v. Peppas, 71 Colo. 25, 203 P. 664; Petraska v. Nat. Acme Co., 95 Vt. 76, 113 A. 536; Georgia Casualty Co. v. Ward (Tex. Civ. App.) 220 S. W. 380; Ohio Oil Co. v. Industrial Commission, 293 Ill. 461, 127 N. E. 743; Bement v. Grand Rapids & I. R. Co., 194 Mich. 64, 160 N. W. 424, L. R. A. 1917E, 322. There was, therefore no error in sustaining the demurrer to the affirmative reply.”

We will not undertake to comment on all of the cases cited. Some of them arose where claimant had failed to give the notice of the accident or injury as provided by the statute and some of them pertained to the failure of the claimant to file his claim or bring an action within the time provided by the statute.

Under our statute the consequences of a failure in either particular is the same. Section 13 of chapter 83, Laws 1917 (which as amended in 1929 was carried forward as section 156-113, 1929 Comp.) provides: “Any workman claiming to be entitled under this act to compensation from any employer on account of injury suffered by accident arising out of and in the course of his employment shall give notice in writing of such accident and of such injury to such employer within thirty days after the occurrence thereof, unless prevented by such injury or other causes beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty days after such accident; Provided, that no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with such injury occurred had actual knowledge of the occurrence thereof. Except in the case of such workman being prevented from giving notice by his injuries and in case where no notice is required no workman failing to give such notice within said thirty days after such injuries occurred shall be allowed to recover any compensation on account of such injury under any circumstances whatever for the period he shall remain in default in giving such notice. In 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, it shall be the duty of such workman, insisting upon the payment thereof, to file a claim therefor in the manner and within the time hereinafter provided. In event he shall either fail to give such notice within the time required, or fail to file such claim within the time hereinafter required, his claim for such compensation and all right to the recovery of the same and the bringing of any legal proceeding for the recovery thereof shall be...