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.
508 P.2d 1332
Fifth, did the three and a half or four and a half hour visit at the bar constitute an abandonment of his employment? The answer is “no.”
Parr v. New Mexico State Highway Department, 54 N.M. 126, 215 P.2d 602 (1950), answers the question. Here, the decedent, a project engineer, was in Bloomfield and advised an employee of his intention to call that night on the foreman in charge of the La Plata job. It would be necessary to pass through Farmington to visit this job. While in Farmington, he visited his father who was desperately ill at a hospital, and, thereafter, he resumed travel on the journey which occasioned the trip. The Supreme Court held that this visitation “would not deny his trip character as in the course of his employment.”
Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964), quoted from Parr, supra. Frederick was operating defendant‘s truck on a return trip from Denver to his destination in Hobbs when the accident occurred. An hour and a half was spent stopped by a stream. A direct route home was not taken. At the time of the accident, Frederick was not “aimed at reaching some specific personal objective.” The court ruled as a matter of law that a finding of material deviation from the direct course to Hobbs was based on guesswork and cannot be sustained.
In McKinney v. Dorlac, supra, the decedent stopped his automobile an hour or more in a bar and cafe while on his way to work in Roswell. This did not constitute so great a deviation from pursuit of his journey to bar recovery.
See also, Ark. Power and Light Company v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958); Sherrill & LaFollette v. Herring, 78 Ariz. 332, 279 P.2d 907 (1955); 99 C.J.S. Workmen‘s Compensation § 222 c, p. 748, note 49, where Parr, supra, is cited under “return to employment.”
I am convinced that decedent, at the time of the accident, sustained an accidental injury arising out of, and in the course of his employment, and the accident was reasonably incident to his employment. Defendant did not make an affirmative showing that there were no factual issues. It was not entitled to summary judgment.
Tandy L. Hunt, Turpen, Hunt & Booth, Albuquerque, for plaintiff-appellant.
Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendants-appellees.
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
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
We cannot condone such a total lack of regard, by attorneys practicing in this court, of the basic rules governing appeals.
Plaintiff also violated
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
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
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]
Plaintiff‘s requested findings on job related accidents are not considered. Plaintiff did not comply with
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
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.
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.
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
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
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. Fullroe, 47 N.M. 423, 144 P.2d 145 (1943), nor whether the emphasized language covers only the provisos. We will meet the challenge head on.
The real question is: Must the trial court, in fixing weekly compensation, apply an actual hourly wage paid an employee if it is illegal? The answer is “no.”
Kendrick v. Gackle Drilling Company, 71 N.M. 113, 376 P.2d 176 (1962), cites Larson, Workmen‘s Compensation Law, § 60.11. The question and answer are found in Larson. The cases relied on by defendants are discussed in Larson and 99 C.J.S. Workmen‘s Compensation § 292. In these cases, the employer was not required to follow the Federal Fair Labor Standards Act. These cases can be distinguished. Under the New Mexico Minimum Wage Act,
When any employer would be covered by both the provisions of the Federal Fair Labor Standards Act and the provisions of the state Minimum Wage Act . . ., the Fair Labor Standards Act shall exclusively apply.
But even if defendants’ cases cannot be distinguished, we agree with Larson, supra, that the cases cited by defendant were clearly wrong. 2 Larson‘s Workmen‘s Compensation Law, § 60.11, pp. 88.186, 187 (1970), states:
There seems to be no reason why the outcome should be affected by the fact that it is a federal statute that happens to be involved in these two cases. The same point could easily arise under a state minimum wage statute. If the first case presenting this point had arisen under a state statute, it seems difficult to believe that the wage made illegal by state law would be adopted for purposes of a wage calculation under another state law. This being so, the question is narrowed to the issue whether there is any good reason for distinguishing between a state and federal minimum wage law for this purpose. In both cases, the substandard wage is illegal under the law of the land, and in both cases the claimant has a legal right to the higher wage which can be enforced by appropriate proceedings.
* * * * * *
[I]t hardly seems within the spirit of the Workmen‘s Compensation Act to put the claimant through this succession of legal proceedings in order to have the benefits based upon “fair” wage to which he was legally entitled.
Other corrections are necessary to make the findings, conclusions and judgment conform to this new mathematical computation.
E. Plaintiff is Entitled to 6% Interest on the Judgment Rendered.
The judgment provides in part:
IT IS FURTHER ORDERED ADJUDGED AND DECREED that 158 weeks of compensation benefits are currently due which is a lump sum of $815.56, and in addition defendants are required to pay interest at the rate thereon of six percent (6%).
The amount of the lump sum stated is wrong and a much larger amount will be stated on reversal.
Plaintiff mistakenly raised the issue of payment of interest. Payment of interest was omitted in a void amended judgment entered after notice of appeal was filed. It was not omitted from the judgment before this court.
Defendants, not having cross-appealed, cannot now contend that payment of interest is void because interest is not allowed in the Workmen‘s Compensation law. The trial court‘s judgment on this issue is final. State ex rel. Maloney v. Sierra, 82 N.M. 125, 477 P.2d 301 (1970).
We do not find it necessary to determine whether
Plaintiff is entitled to 6% interest on the amount of the lump sum from the date of the judgment, June 2, 1972, to the date it is paid.
F. Trial Court did not Abuse Discretion in Allowing Plaintiff $1,000.00 Attorney Fee.
Plaintiff claims the trial court abused its discretion in awarding plaintiff $1,000.00 as an attorney fee pursuant to
Trial court attorney fees have been increased, Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966), and decreased, Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797 (1958); Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966).
Although we might assess attorney fees in an amount greater than $1,000.00, we cannot state, as a matter of law, that the fees were inadequate and the granting thereof an abuse of discretion by the trial court. Adams v. Loffland Brothers Drilling Company, supra.
Before the trial court made its award, the record failed to disclose the amount of time plaintiff‘s attorney spent in conferences, if any, investigations made, if any, research, legal and medical, if any, preparation for trial, etc. Plaintiff‘s attorney simply submitted the State Bar Association standards on Contingent Fees.
The judgment is affirmed on the basis of, (1) 50% permanent disability; (2) interest of 6% on the judgment; (3) $1,000.00 attorney fee.
The judgment is reversed with instructions to enter judgment in conformity with the computation made in Point D of this opinion as applied to, (1) average weekly earnings; (2) the amount owed plaintiff for 158 weeks compensation. Plaintiff is awarded an additional attorney fee of $1,000.00 for presenting this appeal.
It is so ordered.
HENDLEY, J., concurs in part and dissents in part.
HENDLEY, Judge (concurring in part and dissenting in part).
I do not agree with nor can I see the purpose of that part of the majority opinion under section “B“. There was a substantial compliance with the rules.
I do not agree with that part of the majority opinion under section “C“. Plaintiff challenged the trial court‘s finding of fact No. 5 for lack of substantial evidence in the brief-in-chief where he stated: “Appellant [plaintiff] is unaware of any testimony that would support a determination that Mr. Trujillo [plaintiff] was only 50 per cent disabled.” A review of the record, however, does disclose substantial evidence to support the finding.
I do not agree with that part of the majority opinion under section “D“.
I do not agree with that part of the majority opinion under section “E“. It misconceives plaintiff‘s argument. Plaintiff argues he should have interest from 31 days after the date of the occurrence of the disability.
I do not agree with that part of the majority opinion under section “F“. The provisions of
For the foregoing reasons, I concur in part and dissent in part, disagreeing with the reasoning of the majority.