*1 in which all cases provides: “In Evid. person of a trait of character or a character claim, or charge, element of
is an essential specific
defense, may made of proof also be add- [Emphasis his conduct.”
instances quali- trait or made his The defendant
ed.] an essential element passivity
ty of Defining “character” the word
defense. qualities or usual person’s normal or 405(b)
traits, had the under Rule the State spe- about question the defendant
right to contrary.
cific instances showed
I would affirm. GONZALES, Plaintiff-Appellee
Ramon Cross-Appellant, COMPANY, A
BATES LUMBER Self-In- Employer, Defendant-Appellant
sured Cross-Appellee.
No. 4726. Appeals of New Mexico.
Court of
April July Denied
Certiorari
The dictionary definition “essential” ex- plains: “[Fundamental, vital, and cardinal imply all importance, indispensa- maximum bility, necessary priority in considera- * * * tions, plans, or discussions. Cardi- may nal refer to the decisive or conclusive may suggest since it that on which an out- hinges pivots[.]” come or Webster’s Third Dictionary New International plaintiff approximately is five feet five height inches in and at the perti- nent appeal weighed to this about 185 pounds. Harvie, Dr. W. orthopedic K. an surgeon plaintiff who saw the on several occasions, July testified that on continuing pain. was to have He “[h]e had twenty-two lost pounds, his back continued King, King, David W. Threet & Albu- to hurt.” Harvie also Dr. testified querque, defendant-appellant cross- weight plaintiff ideal would be between appellee. pounds pounds and 145 and that it was Crollett, Crollett, Roybal Richard J. & dangerous procedure not a weight. to lose Albuquerque, plaintiff-appellee Gold, Dr. G. N. neurological surgeon who cross-appellant. plaintiff occasions, examined on several asked he lost down to 135 to 140 “[i]f now, pounds you do think that would affect OPINION physical his ability to return to work?” The HERNANDEZ, Judge. Chief pertinent part his answer was as follows: just “I don’t case, losing weight, believe that In this if workmen’s de- he any change did that without appeals judgement fendant mental from in favor course, which, of impossible— is adjudged which to be attitude — necessarily would make difference. I temporarily totally disabled since October mean, people fat don’t have backaches benefits, nec- weekly In addition to essarily any skinny people.” more than Dr. expenses, medical rehabilitation Rosenbaum, M. orthopedic surgeon, G. an fees, attorney’s first September saw travelling expenses awarded He got was asked weight if his treat- incurred in connection with medical pounds, down to would this resolve his he ments that received. problems. back His answer was that: “It Defendant’s first of error is would make little difference —the lost weight failure to lose consti weight would make little difference in the tuted a refusal to receive medical treat back condition.” Dr. Rosenbaum was also 52-l-51(G), ment. asked if get weight could his down provides pertinent part: to 140 pounds or 130 would he be able to any any persist workman shall un- “perform the past his former or injurious sanitary practice tends or occupations.” His answer was: “That it imperil, impair recovery or to retard his would make no difference.” Dr. N. F. his or shall refuse to Moon,
or increase
orthopedic surgeon
who saw the
surgical
such
treat-
occasions,
submit to
medical or
plaintiff on several
was asked:
reasonably
pro-
ment as
essential
got
Mr.
“Assume
Gonzales
down to the
recovery
may
at,
mote his
court
its weight you
like
would
to see him would
compen-
suspend
reduce or
his
radiculopath?”
discretion
his
cure
He answered:
[Emphasis
truly
“If
got
sation.
he
it down to a
weight
normal
added.]
height,
(Ct.App.1967).
opin-
for his
I do not
think that
This
radiculopathy
improve.”
should
He was
question
ion did not decide the
of the au-
“Doctor, you said that Mr.
also asked:
if
thority
a trial court
to award such ex-
got
weight
accept-
down
his
Gonzales
penses.
solely
It was decided
on the basis
level,
doing
return
able
he could
proof,
excerpt
of the failure of
as this
will
Now,
you
go
duties.
so far
attest:
*3
put
guarantee?”
as to
that in a written
His
absolutely
He
cites
no author-
[workman]
“No, sir,
answer was:
I would not.”
ity for his contention that he was entitled
amply supports
trial
This evidence
the
to be reimbursed for these claimed ex-
findings and conclusions that it was
court’s
penses.
“reasonably
plaintiff
essential”
for the
The
requested
trial court
the
refused
weight
promote
to lose
in order to
his recov-
finding
by plaintiff,
tendered
and con-
e.,
ery,
weight
i.
failure to lose
cluded that
is not entitled to
was not unreasonable. See Rhodes v. Cot-
expenses.
reimbursement
travel
Co.,
tle Construction
68 N.M.
357 P.2d
request-
the trial court
the
Since
refused
(1960).
finding by plaintiff, upon
ed
whom rested
point of
Defendant’s second
error is that
establishing
the burden of
the amount of
awarding
erred in
the trial court
travel
expenses
these
and his
to recover
expenses
places
the
to and from
where
same,
they
properly
the
if
were in fact
medical treatment was rendered. The trial
recoverable,
this
finding
amounted to a
court found that
incurred travel
against plaintiff on this issue.
Id. at
expenses in the sum of
Defendant’s third
was a
or that
party requested
hearing,
that
either
court erred
on the
question
attorney’s
only
The
thing
fees.
plaintiff’s disability commenced on or about
appears
in the
is the
record
affidavit
pertinent
1977. The
plaintiff’s attorney
forth in
setting
chrono-
the following:
the trial court are
logical
spent
order the time
on this matter
Subsequent
injury
to his accidental
trial,
through
from initial interview
total-
of October
continued to
ing
131 hours
15 minutes.
defend-
perform
and usual
ant’s
submitted a document enti-
defendant,
employment
with
tled
of Affidavit of
“Controversion
Services
approximately twenty-
interim lost
Rendered”
recited
injury,
three
weeks from
due to his
spent
preparing
amount
time he
for which absence
vol-
trying
case came
72 hours.
It went
untarily paid
workmen’s
allege
on to
spent
much of
defendant in the
amount
unnecessary
the complaint
“because
*4
$114.61 week.
within
was filed
an unreasonable time after
Except
6.
the aforementioned
written
the first
demand was made on de-
twenty-three
weeks that
was ab-
Compensa-
to resume
fendant
Workmen’s
work,
sent from
he continued to
tion benefits.” Attached to this document
regular
the
performing
defendant
the
were copies
attorney’s
of
billing
defendant’s
employment
and usual
until
sheets.
27, 1977,
approximately October
at which
Supreme
Fryar
Johnsen,
Our
Court in
v.
was unable to continue
485,
(1979),
93 N.M.
Defendant’s last of error is 21. Plaintiff should be awarded rea- trial court abused its discretion in attorney’s sonable fees in the amount of awarding plaintiff attorney’s in the $5,500.00 fees handling, successful amount of The preparation presentation record does not of his claim. Subsequently, plaintiff per- and the trial continued to attorneys’ reports
The court’s attorney’s of knowledge first-hand form his usual tasks. Between proceedings, 28, 1976, 27, 1977, work on the issues and and the October and October work, is outcome sufficient eviden period of year, plaintiff of one lost 23 weeks tiary support Fryar. the award under voluntarily from work for defendant Kennedy Co., Lopez Engineering v. K. B. 20 paid plaintiff compensation of (March 1981); John N.M.St.B.Bull. per week. As a result of the acci- $114.61 (No Fryar, sen v. 19 N.M.St.B.Bull. injury, plaintiff temporarily dental became 6, 1980). vember totally disabled as of October Plaintiff, his cross-appeal, as through August From October sup serts there is not evidence to sufficient 29, 1979, months, period defendant port temporary total disable paid ben- workmen’s degree ment. The determination of the week, pay but failed to efits of $114.61 question of fact is a for the fact expenses prescription medical and finder; if there is substantial evidence to $504.16, finding, this Court is bound $1,639.82. good Plaintiff is candidate for thereby. Drilling Adams v. Loffland Bros. rehabilitation, require hospital future will Co., (Ct.App.1970). and medical care and entitled The trial testimony court had before it the fees. testimony and medical of sever The court concluded from October al determining degree doctors to use in disability began, the date the disability. testimony of at least two through August the date *5 temporarily doctors was that terminated, tiff’s were totally disabled. is relevant There per to week $142.59 entitled in a the record such as reasonable mind $114.61, instead of and defendant was in accept finding to and $2,686.08, 29, August arrears of and from conclusion. we find Because substantial ev April to defendant was in temporary idence to of $4,420.29. Judgment arrears of was en- disablement, we need not address 6,May tered on in with accordance plaintiff’s remaining point regarding lump- appealed. decisions defendant and payment sum benefits. of cross-appealed. Plaintiff is sum of awarded attorney ap- for the in services of his this compensation A. In workmen’s cases peal. judgment of the trial court is this court can act as it desires. affirmed. Rumpf Baking In v. Rainbow Company, IT IS SO ORDERED. 12, 1981, Sutin, J., No. decided March dissenting, held this Court in work- LOPEZ, J., concurs. cases, jurisdic- compensation men’s it had SUTIN, J., part, in dissents in concurs tion to preju- direct the deletion “with part. judgment dice” from a final of a district SUTIN, (concurring part Judge, and appeal taken, and, court from which no dissenting part). time, at the that an attorney, same held client, had the to sue employer I judg- concur in affirmance attorney fees. Certiorari was denied. ment the matter of and dissent on cross-appeal. tiff’s Employers and workmen are now in “a fight ding-dong good The trial that on battle” —“a court found ear- 1976, plaintiff, years Ding-dong onomatopoeic old with nest. 40 an 8th is an word grade bell; education, by employed reproducing defendant as of a the sound and here man, regularly field service the idea fall suffered accidental is that the blows and injury in scope employment. steadily, of a bell.” like the hammer-strokes
427
Dictionary
Brewer’s
and Fable with medical
compensable
of Phrase
treatment are
af-
(1970),
“wing-
p.
prefer
I
call it a
mileage,
proof
ter
cost
mile and
ding
travel,
act,
battle” in which the workman and an
method
even if the
such as
fly
victory
wings.
52-l-49(A),
can
without
1978, speaks only
§
N.M.S1A.
perimeters
protection
The normal
expenses.
terms
medical services and
attorneys
workmen and
have been extend-
Corp.,
v. Zayre
(Me.
Moreau
B. Defendant’s
(Ct.App.La.1980);
382
206
Eskridge
So.2d
v.
conclusions are irrelevant.
Co.,&
(Ark.App.
Goldman
The rule is that never established defendant’s costs; necessarily (3) tion incurred in connection costs for no evidence billed defendant costs, dealing injured workmen, cautious appears per actual costs with of his his costs, e., mile, especially i. whether he or his total uneducated common laborers who meals; night (4) stopped unprepared or ate wheth- protect over or unable their er he car or someone rights used his borrowed under the does not the doc- Every elses. Defendant contend employer Act. payment risks the reasonably hospital tor and visits were not compensation benefits, past interest, attor- necessary. fees, ney expenses and costs in the trial and appellate courts. An can reduce that him Plaintiff testified his wife drove by investing potential loss amount trips on these in his own car. He obtained high of the risk at a secured interest rate. trips evidence of the 91 from and doctor hospital In mileage, trips bills. the round properly The trial court awarded are 106 Of trips, miles. the 91 10 were transportation expenses. doctors, visitations to defendant’s and other doctors he to were on his Plain- went own. findings D. The trial court’s and conclu- gave tiff never defendant a bill for these challenged sions were erroneous. trips kept track costs on and never of his 5, 6, findings claims Defendant 7 and trips. these conclusions and of law and 3 are expense computed Transportation I am erroneous. unable to understand de- follows: position. fendant’s miles 9,646 .. . at 106 miles per trip equals trips Summarized, these are that ex- 17 cents mile equals............. per cept period following 23 week his employees Public are allowed 19 cents October, 1976, injury until October privately mile for each mile traveled in a plaintiff stopped working, when 4(D), owned automobile. Section 10-8— perform tiff was able to Prior to was 17 1980 it disability the date com- cents That which fair mile. is 27, 1977; on menced or about October public employees reasonable for fair and temporarily totally became dis- injured It reasonable for workmen. abled on October injured unreasonable workmen court concluded that gas save period years tickets for a oil totally disabled as of October try how used to estimate much was plaintiff was entitled to benefits based trip, each produce tickets in court and upon applicable rate put guessing game on a at trial or estimate the date of his which was October many per gallon how miles the car would arrearages and is entitled to use; produce expert spec- then or testimony the same. depreciation ulate on the amount of of the during trip. car I assume that defendant seeks to have *7 disability this Court find that the of date objections pandemonium To avoid a of 26, 1976, commenced on October because court, argument a in fixed rate of 17 percentage average the of weekly wage the per cents mile each mile traveled is fair compensation in was less 1976 then in reasonable 52-1-42, 52-1-41 Sections N.M. injured If an incurred an workman. 1976, average S.A. 1978. In weekly the employer any probability about is concerned wage plaintiff allowed was $114.61 provide he can trans- expenses, of excessive compensation. week In it rose to portation require necessary or no- whenever $142.59 week. during trip the report tice and made of injured paid October, is the The trial court found that from compensation payments injury, workman. the date of the accidental filed, October, injured work- except not made is and suit for 23 weeks of dis- man, respect course, duty plaintiff ability, performed has no in this all of his usual must be request October, if An is made. tasks and was not until disabled “temporary tion of stopped when disability,” his because he I add that temporarily totally Pyles was disabled. It neces- in appears which Triple F. Feeds of sarily Texas, Inc., follows that was entitled to (Ark.App.1980). S.W.2d 146 weekly payment the of $142.59. increased Omitting cited, authorities it reads: Temporary disability is defined of the as the
Defendant is aware rule that the fact, healing period following injury. supported by when It sub- evidence, exists the employee stantial cannot be disturbed until is as far re- position appeal. permanent is that the stored as Defendant’s the character of his Boone, applicable rule stated in injury permit. Temporary is Boone v. will disability Boone separate disability is a and distinct from any permanent held all reasonable inferences must be disability may be * * * * “indulged” support judgment. in compensated the separately tempo- the must Yet be of such substance rary payable total benefits are that facts will be established from which interruption without from the time of the may reasonable inferences be drawn. injury degree time at the to the permanent disability is ascertainable. only Defendant submits that the reasona- [Id. 148.] ble be inferences to drawn is that disabled on October because On March the court found that pain suffered thereafter and did plaintiff temporarily totally became dis- perform tasks; usual that to so hold finding abled on That is equivalent taking is words out context correct but the trial court failed to make a a get sentence meaning. desired finding plaintiff’s disability at the time What seeks defendant to do is draw infer- of trial or at time the decision was plain- ences in its to the detriment of favor rendered. “indulge” But we tiff. cannot reasonable This case should remanded to the dis- against judgment. inferences We do so trict court to make a whether judgment. of the To reverse the tiff temporarily or permanently dis- rule reasonable inferences that abled at the time of trial. The trial court judgment (not is contra bonos mores any omitted lump reference to sum award. good manners). accordance with requests give Plaintiff this Court to him a The findings challenged were not errone- lump sum award. This be done cannot un- ous. til the one of permanent case is dis- ability. 52-l-30(B), N.M.S.A. 1978. E. cross-appeal Plaintiff’s should be af- reached, Even when this is to be part firmed part. reversed granted lump sum award within rests Plaintiff, in his cross-appeal claims that Lane, discretion supra; of the trial court. permanently he was totally disabled so that Military Institute, Lamont v. New Mexico lump he could seek a sum award and that (Ct.App.1979). P.2d 774 In fee awarded him was insuffi- effect, decision, by its the trial court exer- cient services rendered in court. cised its discretion and denied lump to a sum award. (1) totally perma- disabled Another reason is not entitled to nently a lump but not entitled to sum lump sum award is that did not settlement. petition lump for a sum the court award totally Plaintiff has been disabled since after hearing in which the court determined *8 totally and was disabled permanent it is a of total case disabili- through judgment the time was entered on ty. 52-l-30(B). 6,May 1980, period a of 30 months. Lane Co., v. Levi Strauss & 590 P.2d this case were remanded the district (Ct.App.1979). Unquestionably, plain- permanent court and a made of permanently tiff is disability, petition disabled. On the defini- total then could lump presented the court to award sum in accord- of the amount of the least, ance with the statute. fee. At not so state in court did its given, decision. Where no reason is my opinion, In the trial court found tem- beyond court acts the bounds of reason and porary in order to avoid abuses its discretion. granting lump sum award. upon presented Based (2) Plaintiff is entitled to an increase in fee, attorney of a among reasonable attorney fees awarded the trial items, spent by other 131 hours were court. lawyer, success was had in the lawsuit $55,- which has a Plaintiff is entitled to a net value to reasonable attor- 000.00, ney fee for services is entitled lawyer rendered additional attorney fee lawyer the trial court. His is not. I am sure is satisfied but the law- cross-appeal, plaintiff Because of a yer is not. I am sure the did not compelled separate to file two briefs in this request lawyer to seek an increase in Court, prod- both of them excellent finished the amount lawyer awarded. I am sure the lawyer ucts. Plaintiff’s should receive an Nevertheless, seeks an increase on his own. attorney fee of for services ren- Rumpf, this Court allowed appeal. dered in this lawyer pursue for an attor- ney Upon logical fee. what or reasonable
basis is unknown.
The trial court found
entitled to reasonable fee but did any
not state reason for this entitlement.
The court did not consider the evidence