Wells v. Gulf Ref. Co., 4361.
| Citation | 79 P.2d 921,42 N.M. 378 |
| Decision Date | 23 May 1938 |
| Docket Number | No. 4361.,4361. |
| Parties | WELLSv.GULF REFINING CO. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Appeal from District Court, Lea County; James B. McGhee, Judge.
Proceeding under the Workmen's Compensation Act by Chris R. Wells, claimant, opposed by the Gulf Refining Company, employer. Judgment for claimant, and the employer appeals.
Affirmed.
A compensation claimant who notified employer of accident and injury within time prescribed, following which employer paid compensation for a period, was entitled to a reasonable attorney's fee in prosecution of successful proceeding for recovery of further compensation. Comp.St.1929, §§ 156-113, 156-122, Laws 1937, c. 92, §§ 7, 11.
John R. Brand, of Hobbs, and Redmond S. Cole, of Tulsa, Okl., for appellant.
C. M. Neal, of Hobbs, for appellee.
Two questions are raised in this court:
[1] First, that one of the findings of the court was not supported by substantial evidence. The appellant did not object or except to the finding made by the district court, nor did he request a finding on the same subject, or otherwise raise in the district court the question of the insufficiency of the evidence to support said finding. Under this state of the record, the supreme court is not authorized to review the evidence to ascertain whether the finding is supported by substantial evidence.
[2] If it is desired to have reviewed by this court the question of whether a finding of fact made by the district court is supported by substantial evidence, that court's attention must be called thereto by an exception or objection to such findings or by request of the objecting party for a finding of fact upon the same subject. Oberg v. Oberg, 35 N.M. 601, 4 P.2d 918; Alexander Hamilton Institute v. Smith, 35 N.M. 30, 289 P. 596; Williams v. Kemp, 33 N.M. 593, 273 P. 12; section 6 of Supreme Court Rule 15.
[3] Appellant's second assignment of error is:
“Where the injured party is furnished medical attention to restore him from the effects of an injury sustained and returns to work subsequent to such treatment and works for a period of days and then, without any demand for compensation or medical treatment, files a claim for compensation, the statute authorizing allowance of an attorney fee has no application and the order to pay $750.00 attorney's fees is without authority of law.”
This question was not raised in the district court and cannot be considered here. American Investment Co. v. Lyons, 29 N. M. 1, 218 P. 183.
[4][5] On this question of attorney's fees the appellant requested the district court to make the following conclusion of law:
“The Claimant is not entitled to a recovery under the provisions of the Workman's Compensation Act of the State of New Mexico; that for such reason, he is not entitled to recover anything on account of attorney's fees.” (Our italics.)
Assuming that appellant's requested conclusion of law was correct, the right to recover attorney's fees followed the district court's conclusion that claimant was “entitled to recover under the provisions of the Workman's Compensation Act.”
However, the district court found in substance that appellee was injured as claimed; that he notified the appellant of the accident and injury within the time prescribed by law, and that appellant paid compensation under the terms of the Workman's Compensation Act, Comp.St.1929, § 156-101 et seq., as amended, until the 20th day of April, 1937, and since said date has failed and refused to pay any compensation for his injury and disability; that on the day after the injury appellee reported the injury to the appellant and that appellant had actual notice of the accident and injuries in the manner and within the time provided by law; that a reasonable attorney's fee for the trial in the district court was $750.00.
These findings, and others made by the court, are the facts upon which the case must be determined, unless set aside by this...
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...requested findings should have been made, or to construe ambiguous findings. It is superseded by the findings of fact. Wells v. Gulf R. Co., 42 N.M. 378, 79 P.2d 921; Wilson v. Williams, 43 N.M. 173, 87 P.2d 683; Wright v. Atkinson, 39 N.M. 307, 46 P.2d 667; In re Chavez' Will, 39 N.M. 304,......
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