*1 mandatory, the use of [Although he U.J.I. contends was entitled (b) Defendant The evidence asserted to place we did not intend to form above to the instruction. testimony of argument is the support adopting substance in the instructions. a defense witness. when-called as Thomas there set forth will be our standards It reads: consideration, any first and deviation him Q ever tell right, you All did [Bai- In from shall be held to error. them testify like for him to you would ley] er- determining whether it is reversible against people? other ror, accept slightest we will evidence that, like I don’t know. Specifically A and prejudice, all doubt will be this. do recall Q you me ask You Let claiming party solved in favor preliminary hearing testifying at the prejudice. this case? slightest prejudice Here the evidence Yes, sir.

A nothing missing casting there is because asking you me Q you Do recall did Bailey doubt oh the evidence giving this answer? you question part of a testify against defendant he promise didn’t him would “You plea bargain. against testify testifying judgment and sentence are affirmed. people, was that mentioned? other condition of think that don’t IT IS SO ORDERED. we like for I told him would him. stated? you that what him to.” Is LOPEZ, JJ., HERNANDEZ concur. the exact I don’t recall Apparently.

A words it. the de show questions

The above preliminary hearing used Thomas’ fendant purposes impeachment— testimony you question and did were asked this you did not answer. Thomas’ answer make this question and answer distinctly admit point, defendant accurate. At that were GARZA, Plaintiff-Appellant, Ernesto question and an have introduced could v. Ro evidence. swer as substantive (1917), P. driquez, JOURDAN, INC., W. A. and the Hartford 1918A, (1918); see Evidence L.R.A. Company, Insurance did not offer the 613(b). Defendant Rule Defendants-Appellees. into evidence. Com question answer Earthmoving, Inc. v. Loma pare Franklin’s No. 2889. Park, Inc., N.M. Linda Appeals Court of New Mexico. hearing testimony preliminary No as substantive evi having been admitted Dec. 1977. dence, giving basis for U.J.I. there was no Rehearing Denied Dec. 1977. 40.11. Crim. ofWrit Certiorari Denied Dec. deciding, but not (c) Assuming, given, have been U.J.I.Crim. 40.11 should consequence of the fail

what would ure an instruction that the General give “must be

Use to U.J.I. Criminal states Note judged would be situation used”? Such mandatory instruc same basis as Seidenberg, Civil. Jewell v. tions of U.J.I. A.L.R.3d (1970) states: *2 Tucker, Jones, Gallegos,

J. E. L. Steven Wertheim, A., Gallegos, P. Snead & Santa Fe, plaintiff-appellant. Stout, Hobbs, defendants-ap-

Lowell pellees.

OPINION

LOPEZ, Judge. brought pursuant

This suit was 59-10-1 §§ through Repl. 1, 1974) recovery Vol. ten due because [10%] provide guard failure to rails employer’s or braces on the scaffolds as devices. preju- Plaintiff’s claim was dismissed with dice, plaintiff ap- and from this dismissal peals. We reverse. (hereinafter plaintiff, Ernesto Garza workman”), by the de- employed

“the fendant, Jourdan, (hereinafter A. Inc. W. employer”). “the Plaintiff was a on build- cement finisher injured ing projects. construction He was employment, in the course of his while working project on a construction in 1972. paid regular The workman was workmen’s compensation benefits until June pay compensation." [Emphasis surer to payment, After defaulted defendant action. complaint in this plaintiff filed added]. was filed the defendant complaint

After the the limitations stat argues Plaintiff pay- and continued reinstituted pleaded ute must as an affirmative de hearing. court’s after the ment until precludes so defend fense and failure to do that: found a later time under raising The court below ant from it at *3 8(c) ,Mexico Rules of Civil action, Rule of the New the filing of of this “At the time 21-1-1(8)(c) Procedure N.M.S.A.1953 compensation had of [§ installments weekly Kitsch, 4, 1970)]; Chavez v. 70 (Repl.Vol. were later restored suspended but been 439, (1962). The Work N.M. 374 P.2d paid all install- has plaintiff generis Act is sui men’s and Compensation benefits the date disability of from ments rights, pro remedies and through the date of creates exclusive injury of trial the 3, 1977.” cedures. January the to be found workman court also correct a misstatement We wish to disabled. totally permanently and made in Martinez v. Earth of the law we the defend- beginning At trial the 590, Co., Resources the workman’s claim ants moved to dismiss we stated that the (Ct.App.1977), wherein by it was barred the ground on the privilege is a statute of limitations in of limitations contained one-year statute waived. interposed or Under our 9, (2d 59-10-13.6, Repl.Vol. N.M.S.A.1953 § Act, limita Compensation Workmen’s the 1, to dismiss 1974). Defendants’ motion pt. filing prece is a condition tion of time for the court did receive although was granted, to maintain dent the the proof. nature of offer of evidence in the is provision jurisdic as and this limitation appeal: points raises two this Plaintiff tional, it may not be waived. limitations was not raised (1) of the statute grants remedy, a new “Where a for an affirmative required trial as prior to places and at time the limitation same defense; (2) the statute of limitations person of within which the com- time the ten apply does not [10%] act, limitation plaining must is a limi- in N.M. set out provision

penalty well as the remedy, tation of the as 9, 1, pt. 1960). Repl.Vol. (2d S.A.1953 provi- in of qualifying the absence clauses, the saving party seeking sions or ¡imitations (1) section The statute remedy bring avail himself must jurisdictional. himself strictly limitations.” of limitations section City v. Albuquerque, Swallows Act in is set out Compensation 265, (1956). N.M. 298 P.2d 945 59-10-13.6, Repl.Vol. ac Plaintiff’s contention 1, 1960) as follows: governed the New Rules Mexico com- filed for workmen’s to be “Claim of Civil is without merit. Procedure give of failure to pensation —Effect are compensation statutes “Workmen’s or to file claim within quired notice rights, remedies generis sui and create his insur- If an or allowed. —A. They procedure which are exclusive. pay er or refuses to workman fails of the common law and derogation are compensation to which installment by the code are not controlled or affected the Work- is entitled workman procedure in suits at law actions Act to 59- Compensation men’s [59-10-1 provided therein.” equity except as duty it is the 10-37], Swallows, supra. insisting workman 8(c) position that Rule of the New as to file a claim therefor compensation, Procedure Mexico is control- Compensation Rules Civil provided in the Workmen’s Act, not later than one ^[1] year after ling pleading of affirmative de- Mexico contrary fenses is to New decisions or in- or refusal of one-year “Does the statute of limitations filing of a claim which hold that above-quoted jurisdictional mat- section time is a prescribed Packers, Meat Mauer-Neuer section?” ter. Linton v. (1963); Armijo v. 378 P.2d The rule of liberal construction Work- Company, 67 N.M. Casualty United States cases is well-estab- men’s v. Am. (1960); Taylor 357 P.2d jurisdiction. Anaya City v. lished Boston, Mass., 35 Ins. Co. of Employers’ Fe, (1969); 451 P.2d 303 Santa Co., Montgomery Casados v. Ward &

Therefore, misstatement correcting Co., supra, v. Earth Resources in Martinez applies interpreta This rule limitations we conclude that Lopez tion of law not facts. & Schultz set out in the Workmen’s Lindsay Company, 79 N.M. Construction jurisdictional. (Ct.App.1968), cert. de *4 nied, 79 N.M. does (2)The statute of limitations not legal dispute case involves a over con claim for the ad- apply plaintiff’s to and, applicable struction of the statutes be ditional 10%penalty. dispute, cause no facts are in the issue statutory penalty The section for failure concerning the statute of limitations is a safety to use devices provide to or failure matter of law for the Court to decide. as follows: reads Follingstad, Mantz v. 505 P.2d Increase or reduction in “59-10-7. (Ct.App.1972). employ- based on failure of compensation Supreme New Mexico has held The employee or failure of to er to the one-year limitations section has a safety use devices. application limited and is “more restrictive” to, injury In case an or death of a “A. jurisdictions. than similar statutes in other workman results from his failure to ob- Highway Garcia v. New Mexico De- appertaining statutory regulations serve partment, 61 N.M. employment, his or to the safe conduct of The in bene- Court Garcia held that medical safety from his failure to use a device payment compen- fits did not constitute provided by employer, his then the com- sation for the the limitations purposes of pensation payable otherwise under the “compensation” statute because the word [59-10-1 “regular semi-monthly refers to benefits.” ten per to shall be reduced cent 59-10-37] [10%]. decrease percent The ten increase or not fall device section does safety to, of a injury “B. In case an or death limitations sec purview of the of an workman results from the failure ten increase or tion either. The devices re- employer provide safety to penalty explained decrease is a statute. As law, any industry or in in quired by Gutierrez, in Baca v. by stat- safety prescribed devices are not (1967): ute, to, of, work- or death a injury if an negligence of the

man results from the 59-10-7, legislature “The enacted su- reasonable failing supply in to employer pra, penalty system, placing duty as a use for the use safety general devices in employer adequate to furnish safe- workman, then the protection or general use for the use or ty devices payable compensation otherwise workman, protection of the Act shall the Workmen’s so, making failure to him event of his do per increased ten cent Section negligence guilty [10%].” liable to be found 59-10-7, (2d Repl.Vol. pt. subject penalty provided.” to the 1, 1960). Thus, safety device statute is not com- portion appeal pensatory punitive, in this is but question presented stating compensation pay- New Mexico: “the otherwise impression one of first limit only intended to per- legislature ten shall be increased able computing filing is the measure of initial claims for com- cent [10%]” levied. to be amount legislature Had the intended pensation. otherwise, would statutory provision interpretation is the Supporting this or reference to the time have included made legislature in by the express recognition file within which an had to for the supra, that action compensa- the employee’s for a reduction of independent penalty is bene devices non-payment regular compensation safety tion for his failure use 59-10-36, supra, provides: interpret fits. Section the statute of limi- provided. To apply only to the bene- filings. claim shall tations “Premature —No receiving concomitantly who by any employee filed workman fits of the and not benefits; Pro- maximum would sure- benefits vided, however, claiming ad- a workman legislature. violate the intent of the ly benefits, because ditional Therefore, although pro- alleged failure employer’s jurisdictional and need not be limitations is device, file there- may suit safety vide defense, it never raised an affirmative for, only safety but in such event statutory pen to the theless does may be determined therein.” device issue relating increase or reduction alty section Thus, workman, exception pursuant to supply statute, file a suit stated devices. receiving he the fact that penalty despite or has compensation benefits” “maximum judgment the trial court *5 regular semimonthly bene- receiving been versed and remanded to determine the issue fits. had in failed of whether the fact decision Supreme The Mexico New provide required safety speci- the devices to 421, Co., N.M. in Norvell v. Barnsdall 41 Oil with proceedings fied and for consistent analogy (1937) by P.2d is applicable 70 150 opinion. this to this that case involved Although case. IT IS ORDERED. SO continuing jurisdiction the of the court application an for decrease termination J., SUTIN, specially concurring. award, question of an the also arose wheth- which to an period applied er the limitation HERNANDEZ, J., concurs. to original applied equally applica- claim an tion to reopen: SUTIN, (specially concurring). Judge to or terminate

“[Application decrease specially concur. compensation prior a award not proceeding is affect- being original an A. Delay in workmen’s the fixing the act by ed the of cases should be avoided. original proceedings time within which Delays compensation cases in workmen’s must be instituted . for spir- an that occurrence often violates the controlling absence of statute the time Hanes presented purpose at it and of the law. Weiss v. may or rule Co., 683, compensation Mfg. (Ct.App. for which N.M. P.2d 209 period 90 568 Barnsdall, Co., .” su- 1977); allowable Casaus v. Levi Strauss & 423, at at 152. pra, P.2d 558, 107, Bar of New Bulletin, 16, 21, p. Mexico Vol. No. regular disability compensa- Plaintiff’s Delays by judges. should be district noted this was paid had when claim tion made explanation delay An of the should be yet completed and he had not filed explana- of the record. an part a Without As period under the Act. maximum benefit tion, appellate an cannot determine court proceeding an original action is not of love was undertaken whether a labor provision of the limitations the work. inapplicable. the Act is Act, not, July was it filed complaint Plaintiff’s Au- the though answer was filed Rules of Civil Procedure even 1975. Defendants’ that apply. months later. reason is 59-10-13.6 is thirteen gust'26, right dur- jurisdictional bring what occurred and bars the does not disclose record 3,1977, January On the action. period. the interim ing complaint the after seventeen months is a limitation on Section 59-10-13.6 the filed, hearing. On the case came not a mere limita- orally hearing, defendants morning It remedy. is absolute tion on limita- year that one raised the defense unconditional, is not subject and it of action plaintiff’s right barred estoppel. Taylor of waiver and pleas 59-10-13.6(A), (Section Boston, Mass., Employers’ Am. Ins. Co. 1) Repl.Vol. negligent rule has P.2d plaintiff with a

of the unchanged. Lucero v. White remained 59-10-7). (Section safety device. Stores, P.2d Auto quotes clairvoyance (1956). Taylor following: to state require It does not attorney, an and com- defendants’ able in itself creates a new “A statute which Bar, should of the knew or petent member gives action to enforce it un- liability “alleged” upon known defense law, to the and fixes the known common To receipt plaintiff’s complaint. that action present it to the wait seventeen months commenced, is limita- not a hearing indi- morning court on creation, It is a tions.. me serious doubts existed cates to commencement of the action within 59-10- applicability his mind indispensable time it fixes is an condition 13.6(A). spanner “To throw which it liability and of action to throw wrench works” means permits.” [Emphasis added]. [35 and ob- create difficulties proceedings that at 3 P.2d at 78]. hearing on the merits. structions Burke, 90 N.M. also Howell v. See wreck- confused trial court became (Sutin, J. dissent- (Ct.App.1977), defendants’ favor. age and ruled in ing). *6 right to throw the Defendants had this distinction. recognize wise to It wrench,” but it have been “monkey should to claim that a attorneys continue Else will This de- thrown seventeen months earlier. is an affirmative de- limitations statute of should lay be avoided. compen- a workmen’s pleaded in fense to be 59-10-13.6, language § case. sation applicable B. Section 59-10-13.6 is not original act was included supra, provision. to the safety device It ago. has never years passed In 59-10-13.6(A) provides: repealed. my opinion, Section modified is too harsh. “The New Mexico rule file a the workman fails to [I]f compliance with rule is that strict majority for within the time claim requirements may claim notice year], section his claim required by this [1 or insurer.” 3 Lar- waived compensation, recovery all his for Law, Sec- Workmen’s son’s bringing (1976). change A the rule 78.70 com- legal proceeding recovery the Supreme discretion rests [Emphasis pensation are forever barred. legislature. or the added]. Resources, Inc., v. Earth Martinez designated is often provision This (Ct.App.1977), by 566 P.2d 838 It is not. This stat

statute of limitations. dicta, stated that a of limita- way of remedy. as well as the ute bars the jurisdictional. agree is not with the cases, is an tions civil limitations In However, 21-1-1(8)(c), expressed. in a con- spirit special Section affirmative defense. curring opinion, I stated that 59- (Repl.Vol.4). Under “Section applies compensation. 10-13.6 to the initial claim for com- Some statutes It pensation. reopening does not specific provisions as to the time for the 842], at procedures." P.2d institution proceedings for review [566 modification of an award. Various conclu subject of safety Section 59-10-7 statutory sions in construction have oc original devices was also included in the See, curred. Creel v. Industrial Commis enacted sion, (1973); Ill.2d 301 N.E.2d 275 Forty-eight years passed. Binswanger Wallace, Company Glass period limitation as a bar has not heretofore 70, 197 (1973); Va. S.E.2d Ball v. Indus safety device been raised cases. The Commission, trial 30 Colo.App. device involves a case of (1972); 82 Am.Jur.2d Workmen’s Com negligence negligent failure of the em- — pensation, § ployer supply reasonable safety devices. Apodaca v. Allison & Haney, my In opinion, applicable 59-10-13.6 is (1953); Gutierrez, Baca v. 77 only to the initial claim for It contains and not otherwise. period no limitation in which to commence proceedings recovery pen- a 10% compensation. is not

alty. If legislature intended to make 59-10- applicable negligence 13.6 to a it provided. would have so legislature It is wise for the to confine the limitation to the initial claim for