Hales v. Van Cleave

429 P.2d 379, 78 N.M. 181
CourtNew Mexico Court of Appeals
DecidedJune 9, 1967
Docket34
StatusPublished
Cited by36 cases

This text of 429 P.2d 379 (Hales v. Van Cleave) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hales v. Van Cleave, 429 P.2d 379, 78 N.M. 181 (N.M. Ct. App. 1967).

Opinion

OPINION

OMAN, Judge.

This is a suit under the Workmen’s Compensation Act of New Mexico. It is unquestioned that plaintiff sustained compen-sable injuries on December 22, 1964, while employed by defendant, Van Cleave; that he was entitled to the maximum compensation benefits of $38.00 per week during the period of his total disability; that he received weekly benefits at this rate from defendant, Mountain States Mutual Casualty-Company, from the date of his injury to February 28, 1966, for a total period of sixty-two weeks and total compensation of $2,356.00; and that he was furnished medical and hospital attention by the said compensation insurer between the date of his accident and the date of trial of this cause on November 3, 1966.

The principal dispute in this case arose over the percentage of permanent disability which plaintiff sustained as a result of his injuries. His position was, and still is, that he is permanently and totally disabled. The trial court found he was partially disabled to the extent of 25%. He has taken this appeal from a judgment awarding him compensation benefits at the rate of $9.50 per week for 438 weeks, based upon a 25% partial permanent disability, in addition to the compensation benefits previously paid to-him.

His first asserted error is that the trial court’s finding as to the nature of the injuries he sustained, although supported by the evidence, is not a full, true and correct resume of the injuries, and that the trial court should have adopted his requested ’ finding which details his injuries, the complications arising therefrom, the recovery made from each such injury and complication, and the probability that he will require further medical attention at some time in the future. This requested finding covers almost two pages of the transcript. The court’s finding correctly describes the nature of the injuries sustained, but does so in ■ general terms and does not go into the mi-' nute details requested by plaintiff. The Rules of Civil Procedure for the District Courts are here applicable. Section 59-10-13.9, N.M.S.A.1953, Rule 52(B) (a) (2) of the Rules of Civil Procedure expressly provides that:

“The findings of fact shall consist only of such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them. * * *”

The court’s finding was sufficient, and he was not required to detail the evidence. State ex rel. State Highway Comm’n. v. Pelletier, 76 N.M. 555, 417 P.2d 46 (1966); Brundage v. K. L. House Construction Co., 74 N.M. 613, 396 P.2d 731 (1964); Hoskins v. Albuquerque Bus Co., 72 N.M. 217, 382 P.2d 700 (1963); Griego v. Hogan, 71 N.M. 280, 377 P.2d 953 (1963); Goodwin v. Travis, 58 N.M. 465, 272 P.2d 672 (1954); Campbell v. Doherty, 53 N.M. 280, 206 P.2d 1145, 9 A.L.R.2d 699 (1949).

Plaintiff next contends the trial court erred because in one finding he refers to “the time of his [plaintiff’s] recovery,” and in another he refers to “plaintiff’s recovery from the injuries received in the accident.” Plaintiff argues that the evidence is all to the effect that he has not recovered. It is apparent that the court was referring to the healing period, or the period of plaintiff’s total disability. See Rhodes v. Cottle Const. Co., 68 N.M. 18, 357 P.2d 672 (1960). In the one finding to which objection is made, the court, after referring to the plaintiff’s recovery, continues to recite the nature of plaintiff’s disability following his recovery. And, as above stated, the court found plaintiff has a 25% permanent disability to his body as a whole as a result of the injuries he sustained.

The word “recovery” does not necessarily imply a complete return to the normal or usual state. It is correctly used in referring to a return toward a normal or 'usual state. Webster’s Third New International Dictionary Unabridged (1966). We are of the opinion that there is no doubt- as to the trial court’s meaning of the use of the word “recover,” but, if there be any doubt, such doubt must be'resolved. in-favor of the judgment: Massey v. Beacon Supply Co., 70 N.M. 149, 371 P.2d 798 (1962); Hinkle v. Schmider, 70 N.M. 349, 373 P.2d 918 (1962).

The plaintiff’s next three- points are all directed at his claims that there is no evidence to support the trial court’s finding and conclusion that plaintiff has. sustained only a 25% permanent disability, and that the evidence shows conclusively that he is permanently and totally disabled.

Total and partial disability-were defined in N.M.Laws 1963 ch. 269, § 1; which was in effect at the time of the accident out’of which this cause arises, in the following language:

“A. ‘total disability’ means a condition whereby a workman, by reason of an injury arising out of, and in the course of, his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience; and
“B. ‘partial disability’- means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage extent to perform any work for which he is fitted by age; education, training, general physical and mental capacity and previous work experience.”

Plaintiff was born on September 25, 1944, was twenty years of age at the time of the accident, and was twenty-two years of age at the time of the trial. He completed the second year of high school, and attended about twelve weeks of his junior year before quitting. Thereafter, he completed a correspondence course in mechanics and received a certificate from the school offering the course. He is of average mental capacity for a person his age.

Insofar as his work experience is concerned, he worked for about six months in a service station, worked for almost a year in different capacities in connection with mining, and worked at some odd jobs of short duration.

The evidence adduced at the trial came from three witnesses: the plaintiff, Dr. Walsh of Silver City, New Mexico, who was his treating physician, and who was called as a witness by plaintiff, and Dr. Hastings, an orthopedic surgeon of Tucson, Arizona, who was selected by plaintiff, but to whom plaintiff was referred by Dr. Walsh. Dr. Hastings’ testimony was offered by defendants, and consisted of a letter of December 22, 1965, and an attached report of consultation and examination. The letter and the report were received into evidence by stipulation of the parties.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Meyers v. Western Auto & CNA Insurance
2002 NMCA 089 (New Mexico Court of Appeals, 2002)
Buckingham v. Health South Rehabilitation Hospital
1997 NMCA 127 (New Mexico Court of Appeals, 1997)
In Re the Adoption of Stailey
870 P.2d 161 (New Mexico Court of Appeals, 1994)
Cantrell v. W & C Contracting Co., Inc.
817 P.2d 1251 (New Mexico Court of Appeals, 1991)
Davis v. Los Alamos National Laboratory
775 P.2d 1304 (New Mexico Court of Appeals, 1989)
Baca v. Marquez
737 P.2d 543 (New Mexico Court of Appeals, 1987)
Archuleta v. Safeway Stores, Inc.
727 P.2d 77 (New Mexico Court of Appeals, 1986)
Board of Education of the Espanola Municipal Schools v. Quintana
697 P.2d 116 (New Mexico Supreme Court, 1985)
Robison v. Campbell
683 P.2d 510 (New Mexico Court of Appeals, 1984)
Eichel v. Goode, Inc.
680 P.2d 627 (New Mexico Court of Appeals, 1984)
Gonzales v. Stanke-Brown & Associates, Inc.
648 P.2d 1192 (New Mexico Court of Appeals, 1982)
Gonzales v. Bates Lumber Co.
631 P.2d 328 (New Mexico Court of Appeals, 1981)
Smith v. Trailways Bus System
628 P.2d 324 (New Mexico Court of Appeals, 1981)
Chavira v. Gaylord Broadcasting Co.
620 P.2d 1292 (New Mexico Court of Appeals, 1980)
Matter of Estate of Head
615 P.2d 271 (New Mexico Court of Appeals, 1980)
Poppe v. Taute
615 P.2d 271 (New Mexico Court of Appeals, 1980)
South v. Lucero
595 P.2d 768 (New Mexico Court of Appeals, 1979)
Gearhart v. Eidson Metal Products
595 P.2d 401 (New Mexico Court of Appeals, 1979)
Bennett v. Lane Plumbing Co.
558 P.2d 59 (New Mexico Court of Appeals, 1976)
Herrera v. Fluor Utah, Inc.
550 P.2d 144 (New Mexico Court of Appeals, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
429 P.2d 379, 78 N.M. 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hales-v-van-cleave-nmctapp-1967.