Trujillo v. Tanuz

• Decision Date: 23 March 1973
• Docket Number: No. 1034,1034
• Citation: Trujillo v. Tanuz, 85 N.M. 35, 508 P.2d 1332, 1973 NMCA 48 (N.M. App. 1973)
• Parties: Tony B. TRUJILLO, Plaintiff-Appellant, v. Arthur TANUZ, d/b/a Golden Tee Cocktail Lounge and Dining Room, and United States Fidelity & Guaranty Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1332

508 P.2d 1332

85 N.M. 35

Tony B. TRUJILLO, Plaintiff-Appellant, v. Arthur TANUZ, d/b/a Golden Tee Cocktail Lounge and Dining Room, and United States Fidelity & Guaranty Company, Defendants-Appellees.

No. 1034.

Court of Appeals of New Mexico.

March 23, 1973.

Tandy L. Hunt, Turpen, Hunt & Booth, Albuquerque, for plaintiff-appellant.

Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendants-appellees.

OPINION

SUTIN, Judge.

This is a workmen's compensation case. The trial court awarded plaintiff 50% permanent disability, and plaintiff appeals.

We affirm in part and reverse in part.

A. Findings of Fact.

The trial court made the following findings of fact:

Plaintiff sustained an accidental injury on or about August 11, 1969, arising out of and in the course of his employment. Defendants had actual knowledge of this injury. As a natural and direct result of the subject accidental injury, plaintiff had a 50% permanent disability. At the time of the injury, the average weekly earnings of plaintiff were $59.40. The maximum allowable recovery is 60% of the average weekly earnings or $35.64 per week, so plaintiff is entitled to 50% of $35.64 or $17.82 per week in compensation benefits.

Plaintiff returned to work on September 15, 1969, and continued work there steadily up until on or about May 1, 1970, when he discontinued such employment. For this period, plaintiff earned $59.40 per week as he had previously, so he was not entitled to compensation benefits. During the period September 15, 1969 to May 1, 1970, plaintiff performed the same duties he had previously performed in the course of his employment.

Defendants paid five weeks in compensation benefits and they are required to pay plaintiff for an additional 495 weeks. Defendants currently owe plaintiff for 158 weeks compensation or a total of $2,815.56, and in addition, defendants are required to pay plaintiff's unpaid doctor, hospital, pharmacy or other medical bills, if any.

Defendants are liable for a reasonable attorney fee of $1,000.00, and for an

expert witness fee of $150.00. B. Plaintiff Violated

Section 21--2--1(15)(16) (b)(c)(e), N.M.S.A.1953

(Repl.Vol. 4) Covering Statement of Proceedings.

In the statement of proceedings, plaintiff failed to set forth any summary of the findings of the trial court, as provided by Rule 15(16)(b) (§ 21--2--1(15) (16)(b), N.M.S.A.1953 (Repl.Vol. 4)). In fact, plaintiff failed to set forth the findings of the trial court anywhere in his brief. In Petty v. Williams, 71 N.M. 338, 340, 378 P.2d 376 (1963), the court said:

We cannot condone such a total lack of regard, by attorneys practicing in this court, of the basic rules governing appeals.

Plaintiff also violated Rule 15(16)(c). Almost three pages of claimed facts were stated without reference to the refusal or failure of the trial court to make a particular finding or findings. Plaintiff then stated:

The judgment in this case is not in the usual form as specified in the Rules of Civil Procedure (Rule 52(7). (sic, § 52(B)(a)(7), N.M.S.A.1953 (Repl.Vol. 4)).

This statement is wrong. The word 'decision' used in Rule 52(B) does not mean 'judgment.' It means 'findings of fact and conclusions of law.' Rule 52(B)(a) (1), supra. The 'decision' was 'contained in a single document; . . .' and was correct as to form.

Plaintiff further stated:

Assuming, without conceding, that the Court's findings contained in a separate document from the judgment are appropriate, then the following Findings are challenged:

A. Finding No. 5, Tr. 39, challenged under Point I; . . .

Other findings were similarly challenged.

Although it is of little value to some attorneys who do appellate work, we must emphasize again and again that in the statement of proceedings, in a trial before the court, the appellant must read and follow § 21--2--1(15)(16)(b)(c) (e), supra. This section applies to findings of fact made and refused in a trial before the court, and any ruling of the court claimed as error.

However, the punishment for a violation of this rule appears to be within the discretion of this court. We may decide cases on the merits if we so desire. Crockett v. Encino Gardens Care Center, Inc., 83 N.M. 410, 492 P.2d 1273 (Ct.App.1971); Petty v. Williams, supra. Apparently, in some cases, we do not want to punish the client for the negligence of his attorneys.

C. Plaintiff is only Entitled to 50% Permanent Disability.

The trial court found plaintiff suffered 50% permanent disability. Plaintiff attacks this finding. The basis of the attack is that the trial court lacked authority to apportion compensation benefits between successive job related accidents. The trial court made no finding on this issue.

The trial court found:

5. As a natural and direct result of the subject accidental injury, the Plaintiff has a fifty percent (50%) disability. (Emphasis added)

By 'subject' accidental injury, the court meant the accident which occurred on or about August 11, 1969. This finding was not attacked for lack of substantial evidence to support it. The above finding is conclusive on appeal. Petty v. Williams, supra.

Plaintiff's requested findings on job related accidents are not considered. Plaintiff did not comply with Supreme Court Rules 15(6), or with 15(16)(b) and (c) (§§ 21--2--1(15)(6); 21--2--1(15)(16)(b)(c), N.M.S.A.1953 (Repl.Vol. 4)). Requested findings contrary to unchallenged findings and conclusions cannot raise an issue on appeal. Prager v. Prager, 80 N.M. 773, 461 P.2d 906 (1969).

Plaintiff's argument on apportionment of compensation benefits between job related accidents is without merit. The degree of disability is a question of fact for the trial court. The primary test for disability is plaintiff's capacity to perform work. Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970). The trial court found plaintiff performed the same duties he had previously performed up to the time he discontinued such employment. Nevertheless, the trial court gave plaintiff the benefit of 50%

permanent disability. This is all plaintiff is entitled to

receive. D. Plaintiff's Compensation Rate was not Properly

Computed Because the Average Weekly Wage was not Based on

the State Minimum Hour Wage Rate.

Plaintiff contends that the average weekly compensation rate should have been computed on the basis of $1.30 per hour as provided by § 59--3--22(B), N.M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971) of the 'Minimum Wage Act.' We agree.

The 'Minimum Wage Act' makes a violation thereof a misdemeanor punishable by fine or imprisonment or both. It also grants an employee remedies for recovery of unpaid minimum wages and an additional equal amount as liquidated damages, plus costs and reasonable attorneys' fees. Section 59--3--24, supra.

Section 59--10--12.13(D), N.M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971) of the Workmen's Compensation Act reads as follows:

D. Provided, that in case such earnings have been unusually large on account of the employer's necessity temporarily requiring him to pay extraordinary high wages, such average weekly earnings shall be based upon the usual earnings in the same community for labor of the kind the workman was performing at the time of the injury. In any event the weekly compensation allowed shall not exceed the maximum nor be less than the minimum provided by law. (Emphasis added)

Plaintiff relies on the portion emphasized. Plaintiff testified he was paid $1.10 per hour and he worked nine hours a day, six days a week. His average weekly wage was $59.40. The employer did not dispute these facts. The trial court adopted this amount even though the payroll records showed an average weekly wage of $56.30 at the time of the accident.

Section 59--10--12.13, supra, provides that '. . . the average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments . . ..' It also provides the method of computing average weekly wages when payment is made at an hourly rate. The trial court followed this procedure.

The emphasized language, supra, is the end of a long statutory provision for determination of average weekly wage. It has not been interpreted before and is a matter of first impression.

In C.S.1929, § 156--112(m), the pertinent language at the end of the paragraph read:

In any event the weekly compensation allowed shall not exceed the maximum nor be less than the minimum provided in Section 17 hereof. (Emphasis added)

Laws 1937, ch. 92, § 6, replaced former subsection (m) with subsection (m) set forth as § 59--10--12(m)(4), N.M.S.A.1953 (Repl.Vol. 9, pt. 1). It read as it does now:

In any event the weekly compensation allowed shall not exceed the maximum nor be less than the minimum provided by law. (Emphasis added)

The Supreme Court has said that ". . .. If the statute does not work with justice to the workmen, this is a matter for the Legislature. . . ." La Rue v. Johnson, 47 N.M. 260, 141 P.2d 321 (1943). It is obvious the legislature intended a change in meaning when it replaced the phrase, 'provided in Section 17 hereof,' by the phrase, 'provided by law.' 'Provided by law' means 'provided by statute law.' Fountain v. State, 149 Ga. 519, 101 S.E. 294, 295 (1919).

The phrase 'in any event' in the above quotation means 'no matter what else may be' or 'whatever may happen.' Olson v. Rossetter, 330 Ill.App. 304, 71 N.E.2d 556, 560 (1947). It is a prohibition. No event and no circumstance can excuse compliance with the conditions stated. Thrall v. Grant County Board of Education, 38 N.M. 358, 359, 33 P.2d 908 (1934).

The emphasized language, supra, means that regardless of what event occurs, the weekly compensation allowed by the court, based on an hourly rate, shall not be an hourly rate less than the minimum provided by the Minimum Wage Act.

If there is some doubt over the construction of the statute, we need not quarrel over the change in phraseology, see Janney v....