THWAITS v. KENNECOTT COPPER Corp.

• Decision Date: 14 April 1948
• Docket Number: No. 4990,4990
• Citation: 52 N.M. 107,192 P.2d 553
• Parties: THWAITS v. KENNECOTT COPPER CORPORATION, CHINO MINES DIVISION.
• Court: New Mexico Supreme Court

52 N.M. 107

192 P.2d 553

THWAITS

v.KENNECOTT COPPER CORPORATION, CHINO MINES DIVISION.

No. 4990.

Supreme Court of New Mexico.

April 14, 1948.

[192 P.2d 553, 52 N.M. 108]

J. B. Newell, of Las Cruces, for appellant.

Woodbury & Shantz, of Silver City, for appellee.

Caswell S. Neal, of Carlsbad, amicus curiae.

PER CURIAM.

The original opinion is withdrawn on Motion for Rehearing and the following substituted:

BRICE, Chief Justice.

The appellant, widow of a workman accidentally killed in the course of his employment,filed her claim for compensation in the district court, which, upon motion of appellee, was dismissed because 'It fails to state a claim under the Workmen's Compensation Act of New Mexico upon which relief can be granted.'

The alleged grounds for compensation are as follows:

'The undersigned hereby asks judgment for compensation under the Workmen's Compensation Act of New Mexico, for the death of her husband Eugene Bostick Thwaits, who was injured on November 14th, 1944, while working as a brakeman upon an ore train of the defendant corporation, and who died as a result of said injuries on the following day, to-wit: November 15, 1944;

'That at the time of receiving said injuries the decedent was receiving average weekly earnings of $60.00; that at the time of his death he had dependent upon him your claimant and three minor children then living with decedent and this claimant.

'That under the provisions of Sec. 57-918 N.M.Statutes Ann.1941, Sub-sec. 5 of Sub-sec. (2)(a), the claimant being the surviving widow with three dependent children would be entitled to receive $33.00 per week; that said defendant company has been paying to claimant the sum of $18 per week, asserting that said amount is the maximum to be paid under the statute applicable to the instant case; that by agreement between respective counsel said amount is being paid and received without prejudice to claimant's right to litigate this question.

'Plaintiff states that at the time her husband was injured he was riding on the rear platform of a caboose on said ore train; that said platform was not equipped with reasonable safety devices consisting of guard rails to prevent employees from falling or slipping off the said platforms; and as this claimant is informed and believes and upon such information and belief states the fact to be that the injury to her husband was the direct result of the failure of said Company to provide such safety device. That said Company since said accident has installed such safety devices upon caboose cars of the kind which decedent was riding at the time he received his fatal injuries.

'That should the court find that said defendant company was negligent in failing to provide proper safety devices as hereinabove alleged and that such failure caused the death of the decedent, then claimant would be entitled to an increase of 50% in the compensation payable to decedent's dependents.'

The grounds alleged for dismissal are as follows:

'That it does not appear from said claim that the death of the workman Eugene Bostick Thwaits, resulted from the failureof the employer to provide safety devices required by law or that the death of said workman resulted from the negligence of the employer in failing to supply reasonable safety devices in general use in the industry for the use or protection of the workman.

'That it appears from said claim that defendant has, since the date of the death of said workman, been paying to plaintiff the sum of Eighteen Dollars ($18.00) per week, the maximum amount required to be paid under the Workmen's Compensation Act of New Mexico.'

The Court sustained the motion to dismiss upon each ground stated.

The question presented in the briefs of the parties is whether the appellant is entitled to $18 per week for three hundred weeks, as the Court concluded, or $33 per week for that number of weeks, as appellant asserts.

The following statutes bear upon the question:

'(a) * * *

'In case death proximately results from the injury within the period of one [1] year, compensation shall be in the amounts and to the persons as follows:

'(1) If there be no dependents, the compensation shall be limited to the funeral expenses not to exceed one hundred and fifty dollars ($150.00) and the expenses provided for medical and hospital services for deceased, together with such other sums as deceased may have paid for disability.

'(2) If there are dependents at the time of the death, the payment shall consist of not to exceed one hundred and fifty dollars ($150.00) for funeral expenses and the percentage hereinafter specified of the average weekly earnings, subject to the limitations of this act, to continue for the period of three hundred [300] weeks from the date of injury of such workman; Provided that the total death compensation payable in any of the cases hereinafter mentioned, unless otherwise specified, shall not be less than ten ($10.00) dollars per week nor more than eighteen ($18.00) dollars per week.

'If there be dependents entitled thereto, such compensation shall be paid to such dependents or to the person appointed by the court to receive the same for the benefit of such dependents * * * to be computed on the following basis, and distributed to the following persons:

'1. To the child or children, if there be no widow or widower entitled to compensation, twenty-five [25] per centum of earnings of deceased, with ten [10] per centumadditional for each child in excess of two [2] with a maximum of sixty [60] per centum, to be paid to their guardian.

'2. To the widow or widower, if there be no children, forty [40] per centum of earnings, not to exceed a maximum compensationof sixteen dollars ($16.00) per week.

'3. To the widow or widower, if there be one child, forty-five [45] per centum of earnings.

'4. To the widow or widower, if there be two [2] children, fifty [50] per centum of earnings.

'5. To the widow or widower, if there be three [3] children, fifty-five [55] per centum of earnings.

'6. To the widow or widower, if there be four [4] or more children, sixty [60] per centum of earnings. * * *' (Our emphasis.) Sec. 57-918 N.M.Sts.1941.

The proviso in Sec. 57-918(a)(2), as follows, 'Provided that the total death compensation payable in any of the cases hereinafter mentioned, unless otherwise specified, shall not be less than ten ($10.00) dollars per week nor more than eighteen ($18) dollars per week,' determines this question against appellant. It is otherwise specified in Sec. 2 following that the widow or widower if there be no children is entitled to a maximum compensation of $16 per week. The proviso, therefore, does not apply to this paragraph, but as it is not ' otherwise specified' in paragraphs 3, 4, 5 and 6, to these paragraphs the proviso does apply.

The trial court was correct in holding that the appellant and three children are entitled to normal compensation at the rate of $18 per week for 300 weeks.

The charge that the deceased at the time of his injury was riding on the rear platform of a caboose on an ore train not equipped with reasonable safety devices, consisting of guard rails to prevent employees from falling or slipping off the platform, and that his death was the direct result of such failure to provide such safety device, was the second ground for appellant's claim of compensation.

The statutes of New Mexico applicable to this claim for compensation are the following:

'* * * In case an injury to, or death of, a workman results from the failure of the employer to provide the safety devices required by law, or in any industry in which safety devices are not provided by statute, if an injury to, or death of, a workman results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman, then the compensation otherwise payable under this act shall be increased by fifty per centum (50%). Provided further, that any additional liability resulting from any such negligence on the part of the employer shall be recoverable from the employer only and not from the insurer, guarantor or sureties of said employer under this act except that this shall not be construed to prohibit employers frominsuring against such additional liability.' N.M.Sts.1941, Sec. 57-907.

The injured workman's compensation is increased fifty per cent if his injury results (1) from the failure of the employer to provide the safety devices required by law, and (2) or from the negligence of the employer 'in failing to supply reasonable safety devices in general use for the use or protection of the workman,' if in any industry safety devices are not provided by statute.

The first question is whether guard rails around the platform of a caboose attached to a train of ore cars, to prevent employees from falling off, is a safety device required by law.

The New Mexico mining laws in question were enacted in 1933. Following Sec. 67-2001, supra, a statute in general terms...