Vukovich v. St. Louis

• Decision Date: 24 August 1936
• Docket Number: No. 4186.,4186.
• Citation: 40 N.M. 374,60 P.2d 356
• Court: New Mexico Supreme Court
• Parties: VUKOVICHv.ST. LOUIS, ROCKY MOUNTAIN & PACIFIC CO.

40 N.M. 374

60 P.2d 356

VUKOVICH

v.ST. LOUIS, ROCKY MOUNTAIN & PACIFIC CO.

No. 4186.

Supreme Court of New Mexico.

Aug. 24, 1936.

Appeal from District Court, Colfax County; Livingston N. Taylor, Judge.

Proceeding under the Workmen's Compensation Act by Darinka Vukovich, claimant, for the death of her husband, Ilija Vukovich, opposed by the St. Louis, Rocky Mountain & Pacific Company, employer. An order awarding compensation was entered by the district court, and the employer appeals.

Reversed and remanded, with directions.

Where employee died on June 1, 1932, from injuries sustained on July 27, 1931, which rendered him totally disabled until date of death, claim filed on April 1, 1933, held too late, since claim must be filed within one year of date of injury. Comp.St.1929, § 156-112, subd. (1); § 156-116.

Crampton & Robertson, of Raton, for appellant.

Fred J. Voorhees, of Raton, and H. A. Kiker, of Santa Fé, for appellee.

SADLER, Chief Justice.

The plaintiff (appellee) recovered compensation and attorney's fees in the district court of Colfax county under the Workmen's Compensation Law (Comp.St. 1929, § 156-101 et seq.) for the death of her husband in a mine accident. The defendant against whom said recovery was had seeks a review of the judgment by this appeal.

The husband, Ilija Vukovich, while employed by defendant as a coal miner, on July 27, 1931, suffered an injury from accident arising out of and in the course of his employment by the falling of rock in the mine. The major injury was a broken back. He was admittedly totally disabled by reason of the injury from the date thereof until his death on June 1, 1932, and was paid disability compensation throughout such period. The deceased left surviving him his widow, the plaintiff, and five children of whom the eldest was over eighteen years of age.

The claim or suit for compensation was not filed until April 1, 1933. While this was only ten months from the date of death, it was slightly more than twenty months after the injury claimed to have resulted in death.

Throughout the proceedings in the district court, the defendant urged at every opportunity the proposition that under our statute a claim for death compensation must be filed within one year after the injury, and that the claim in this case is therefore barred. An attempt heretofore has been made to have us determine this specific question. See State ex rel. St. Louis, Rocky Mountain & Pacific Company v. District Court, 38 N.M. 451, 34 P.(2d) 1098. There it was sought to obtain a permanent writ of prohibition on the theory that the one-year limitation was jurisdictional. After hearing, we denied the writ upon the ground that prohibition was not a proper remedy. We did not construe the limitation statute, although for the purposes of that decision we felt called upon to assume that a recovery of compensation could not be upheld because barred by the statute.

The defendant assigns six errors. The first being decisive, we shall consider it alone. It is that the claim for compensation is barred under 1929 Comp. § 156-116, because not filed within one year after the date of injury. The section relied upon as barring the claim reads as follows: “In event any injury from accident arising out of and in the course of the employment of a workman should result in and be the proximate cause of his death and he should leave surviving him any dependents, as herein defined, entitled to compensation under the terms hereof, payment thereof may be received or claim therefor filed by such person as the court may authorize or permit, on behalf of the beneficiaries entitled thereto, and such claim shall be filed and answer made thereto and other procedure had as in cases filed by injured workman, Provided, that no claim shall be filed or suit brought to recover such compensation unless claim therefor be filed within one year after the date of such injury.” (Italics ours.)

We have never before been called upon to construe the limitation provisions of our Workmen's Compensation Act in the respect now invoked. In Caton v. Gilliland Oil Co., 33 N.M. 227, 264 P. 946, 947, construing L.1917, c. 83, § 13 (carried forward as amended in 1929 as 1929 Comp. § 156-113), which provides the limitation applicable to claims for non-fatal injuries, we said: “If anything can be said to be made plain by this remarkably complicated section, it is this: 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.” For other similar holdings, see Taylor v. American Employers' Ins. Co., 35 N.M. 544, 3 P.(2d) 76, and Maestas v. American Metal Co., 37 N.M. 203, 20 P.(2d) 924.

The meaning obviously suggested by the language of this section is that a claim by dependents on account of injury resulting in death is barred unless suit be filed within one year from date of such injury. The defendant relies upon the apparent as the real meaning and says there is no room for construction.

The plaintiff's argument is not without appeal. Succinctly stated it is this: The word “injury” may have two meanings. It can refer either to the physical injury or bodily hurt, or connote the legal injury suffered by those in whose favor a cause of action arises by reason of the compensable death of an employee. As here used in fixing the limitation at one year “from the date of such injury,” it is said it must have been employed in the latter sense, for until that event no right of action exists in the dependents. Hence, the word “injury” where last used in this section means “death,” or includes death, and, claim having been filed within one year after death, is timely.

Reliance is placed upon the statutory definition of the word “injury” or “injuries” carried in subsection ( l) of section 156-112, reading, so far as material, as follows: “In this act, unless the context otherwise requires *** (1) the words ‘injuries sustained in extrahazardous occupations or pursuit,’ as used in this act shall include death resulting from injury.”

In suggesting that the phrase “injuries sustained in extrahazardous occupations or pursuit” should be treated as the equivalent of the word “injury” for present purposes, counsel remind that in Cuellar v. American Employers' Ins. Co., 36 N.M. 141, 9 P. (2d) 685, we noted absence of the exact phrase elsewhere in the act. We so accept it.

In support of their argument plaintiff's counsel cite cases holding that by the word “injury,” as used in the statutes of certain states, is meant the state of facts which first entitles claimant to compensation. Acme Body Works v. Industrial Commission, 204 Wis. 493, 234 N.W. 756, opinion supplemented, 236 N.W. 378; Texas Employers' Ins. Ass'n v. Wonderley (Tex.Civ. App.) 16 S.W.(2d) 386; Fidelity Union Casualty Co. v. Koonce (Tex.Civ.App.) 51 S.W.(2d) 777; Astuto v. Ray Gould Co., 123 Neb. 138, 242 N.W. 375. See, also, 71 C.J. 965. These cases hold under the statutes construed that if the injury does not develop until after the accident, the cause of action arises when the injury develops or becomes apparent and not necessarily at the time of the accident.

That the authorities are not uniform even in this holding is indicated by decisions from certain other jurisdictions. 71 C.J. 1018; Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013, L.R.A. 1918E, 552; Lough v. State Industrial Accident Commission, 104 Or. 313, 207 P. 354; Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770; Ferguson v. State Dept. of Labor, 168 Wash. 677, 13 P.(2d) 39; Salyer v. Ott, State Compensation Commissioner, 108 W.Va. 410, 151 S. E. 323; Central Locomotive & Car Works v. Lindstrom, Industrial Comm., 290 Ill. 436, 125 N.E. 369. But we do not have this question before us and, aside from considering the analogy urged in connection with plaintiff's argument, it is enough at this time to note the divergence of view suggested by the conflicting decisions mentioned.

[1] After carefully weighing the able argument presented by plaintiff's counsel, further reading and reconsideration of the controlling statute leaves us satisfied that the meaning impressed on the mind from a first reading is the true meaning intended by the Legislature in writing the statute. In other words, we conclude that the apparent and the real meaning are not different. An analysis of the language of section 156-116 leaves no doubt in our minds of the correctness of this conclusion. Paraphrased and omitting unessential parts, the statute reads: “In event any injury *** should result in and be the proximate cause of his death *** no claim shall be filed or suit brought to recover such compensation unless claim therefor be filed within one year after the date of such injury.” (Italics ours.)

The statute itself clearly differentiates between injury and death. The one must precede and be the responsible agency of the other in an unbroken chain of causation. The one is the cause; the other its effect. In words as clear and unambiguous as language is capable of, having thus discriminated between injury and death, as between cause and effect, in making death compensable, the statute then proceeds to limit the time within which claim for said compensation must be filed. In this connection, it reads: “Provided, that no claim...