{ "id": 5317986, "name": "Genoveva MONTOYA, as next friend of Maria Olivia Portillo, dependent of Jose Salvador Portillo, Deceased, Claimant-Appellant, v. KENNECOTT COPPER CORPORATION, Chino Mines Division, Santa Rita, New Mexico, Employer-Appellee", "name_abbreviation": "Montoya v. Kennecott Copper Corp.", "decision_date": "1956-06-25", "docket_number": "No. 6035", "first_page": "268", "last_page": "277", "citations": [ { "type": "official", "cite": "61 N.M. 268" }, { "type": "parallel", "cite": "299 P.2d 84" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "57 N.M. 315", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841783 ], "weight": 2, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nm/57/0315-01" ] }, { "cite": "52 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579511 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/52/0107-01" ] }, { "cite": "35 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557996 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0087-01" ] }, { "cite": "137 P.2d 317", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "53 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580724 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/53/0127-01" ] }, { "cite": "47 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562242 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/47/0100-01" ] } ], "analysis": { "cardinality": 863, "char_count": 22188, "ocr_confidence": 0.71, "pagerank": { "raw": 9.258732535288178e-08, "percentile": 0.5113802001583876 }, "sha256": "b1206c90a6bd5584b14713e71fcc60186696bd88a395212d4c72dce5c7349dbf", "simhash": "1:dc74a4eac34e71e4", "word_count": 3663 }, "last_updated": "2023-07-14T18:51:10.475142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and C. ROY ANDERSON, District Judge, concur.", "LUJAN and McGHEE, JJ., dissenting." ], "parties": [ "Genoveva MONTOYA, as next friend of Maria Olivia Portillo, dependent of Jose Salvador Portillo, Deceased, Claimant-Appellant, v. KENNECOTT COPPER CORPORATION, Chino Mines Division, Santa Rita, New Mexico, Employer-Appellee." ], "opinions": [ { "text": "SADLER, Justice.\nThe plaintiff below, the appellant in this Court, suing as next friend for Maria Olivia Portillo, the minor child and dependent of Jose Salvador Portillo, her father, sought recovery of the extra compensation of 50 per cent, provided by 1953 Comp. \u00a7 59-10-7, for the alleged violation of its terms in the failure to provide a safety device required by law. Such failure it is said was responsible for an explosion resulting in the death of the minor\u2019s father while in the course of his employment by the defendant employer. The trial court having sustained a motion to dismiss the amended complaint as failing to allege facts upon which relief could be granted as to the claim for the extra compensation, this appeal followed.\nThe decedent was employed by the defendant as foreman of a blasting crew. While so employed, he suffered an injury on March 31, 1954, from an explosion arising out of and in the course of his employment, resulting in his death. His average weekly earnings were $125. Basis for the claim of the fifty per cent, extra compensation for failure to provide a safety device required by law rests on the fact that the defendant (appellee) stored detonators and fuses together with explosives, in and on a certain truck, contrary to and in violation of 1953 Comp. \u00a7 63-25-13, which violation was responsible for the decedent\u2019s death.\nThe facts hereinabove recited were alleged in plaintiff\u2019s amended complaint. Leave was subsequently granted the plaintiff to add by interlineation as a part of the \u2022 amended complaint certain specific allegations intended to support her claim for the added fifty per cent, compensation by setting-out the respects in which it was claimed there was a failure to provide a safety decvice required by law. The defendant already had answered, prior to the filing of the amended complaint, admitting decedent\u2019s death had resulted from an injury arising out of and in the course of his employment and alleging further, that it was paying him base compensation, as provided by law,'- but denying liability for the 50% extra compensation. It was agreed that this answer should stand as an answer to the amended complaint as further amended by interlineation.\nSubsequent to the interlined addition to the amended complaint mentioned above, the defendant moved to dismiss the same upon the ground that it failed to state .a claim upon which relief could be granted, (a) in failing to show the decedent\u2019s death resulted from defendant\u2019s failure to provide a safety device required by law; and, (b) in failing to identify the specific safety device which it is claimed the employer had failed to provide.\nFollowing argument, the trial court entered an order sustaining the motion to dismiss the amended complaint, as amended by interlineation, with the further proviso that the dismissal should be without leave to amend further. It is from such order that the present appeal is prosecuted.\nThe basic question for our determination is presented under one point, divided into four sub-headings for purposes of argument. They are thus stated by counsel for the plaintiff, to-wit:\nPoint I\nThat Claimant\u2019s First Amended Complaint, As Amended By Interlineation, States A Claim Upon Which Relief Can Be Granted.\nA. That the separate storage of .detonators and other explosives is a safety device required by law.\nB. That the separate storage of fuses and other explosives is a safety device required by law.\nC. That magazines for the separate storage of detonators and explosives are a safety device or devices required by law.\nD.That a \u201creasonably safe\u201d place of employment is a \u201csafety device\u201d required by law.\nThe statutory provisions, the violation of which it is charged caused the death of decedent are 1953 Comp. \u00a7\u00a7 63-20-1, 63-25-3, and 63-25-13. They will be set out herein in the order just listed.\n\u201cEvery mine employer shall furnish such employment and such place of employment as shall be reasonably safe for the employees therein, and shall furnish and use safety devices and safeguards, adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.\u201d \u00a7 63-20-1, 1953 Comp.\n\u201cDetonators or blasting caps shall not be stored with other explosives but in separate magazines.\u201d \u00a7 63-25-3, 1953 Comp.\n\u201cDetonators and fuse shall not be stored with explosives.\u201d \u00a7 63-25-13, 1953 Comp.\nThe so-called \u201csafety statute,\u201d 1953 Comp. \u00a7 59-10-7, upon which the recovery here sought by the plaintiff must stand or fall, as it existed at the time of decedent\u2019s injury and death, reads as follows:\n\u201cIn case an injury to, or death of a workman results from his failure to observe statutory regulations appertaining to the safe conduct of his employment, or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workmen\u2019s Compensation Act shall be reduced by fifty (50) per centum. In case an injury to, or death of a workman results from the failure of an employer to provide safety devices required by law, or prescribed by the labor industrial commission of New Mexico as hereafter provided, then the compensation otherwise payable under the Workmen\u2019s Compensation Act shall be increased by fifty (50%) per centum. Provided, further, that any additional liability resulting from any such negligence on the part of the employer shall be recoverable from the employer only and not from the insurer, guarantor or surety of said employer under the Workmen\u2019s Compensation Act, except that this shall not be construed to prohibit an employer from insuring against such additional liability.\n\u201cAnd Provided further, that no employee of such employer shall file a claim for such additional fifty (50%) per centum compensation under the Workmen\u2019s Compensation Act on the basis of an injury, nor shall a dependent of a deceased employee file a claim on the basis of the death of a workman, suffered because of the lack of a safety device, unless said claim shall identify the specific safety device which it is claimed was not furnished by the employer; and the employer shall be under a like duty to specifically allege the specific safety device which it is claimed an employee failed to use before the employer may claim a reduction of fifty (50%) per centum as herein provided.\u201d\nA reading of the sub-headings into which counsel for plaintiff have divided their Point I for purposes of argument readily suggests that all may be encompassed- into a single discussion taking notice, nevertheless, of the several sub-points presented-\u201cTo come.to grips\u201d with the problem before us, as counsel for defendant, the employer, prefer to introduce their argument, the record presents a widely variant appraisal of the true meaning of the governing statute. That statute is 1953 Comp. \u00a7 59-10-7. The fundamental difference in the views of opposing cottnsel as to the true meaning of this statute may best be stated by saying that counsel for defendant would confine the \u201csafety device\u201d intended by it to something tangible \u2014 a thing which can be seen, felt and \u201cprovided.\u201d\nOn the other hand, the plaintiff\u2019s counsel would broaden the meaning of the phrase to include a \u201crule of conduct,\u201d as the doing of an \u201cact,\u201d calculated to promote safety, or prevent accidents. A reading of .the briefs of opposing counsel demonstrates, we think,-that the thinking of counsel proceeds in directly opposite directions on this decisive question.\nThus it is that we have the plaintiff\u2019s counsel presenting as its initial contention for a ruling by us that (a) the separate storage of detonators and other explosives is a safety device required by law, and (b) that the separate storage of fuses and other explosives is likewise a safety device required by law. They quote 1953 Comp. \u00a7\u00a7 63-25-3, 63-25-13 and 63-20-1. They are cited, supra, and quoted as well. In as much as the plaintiff\u2019s complaint as finally amended charged a violation by defendant of all three sections mentioned, or attempted to do so, we may assume a violation of them for purposes of testing whether such violation invokes an award of the 50% extra compensation.\nThe pertinent section of plaintiff\u2019s complaint, as finally amended, reads as follows:\n\u201cThat at the time of the decedent\u2019s death the employer furnished to the decedent and other employees one truck, which was used as a magazine for the storage of detonators, fuses and explosives, the same being all stored together and contrary to the provisions of Sections 63-25-3, 63-25-13 and 63-20-1, New Mexico Statutes, 1953 Compilation; and that the employer failed to provide decedent with a separate magazine for the storage of detonators and fuses separate and apart from a magazine for the storage of explosives, which violation of statutory duty and failure to provide said safety devices resulted in the explosion causing decedent\u2019s death.\u201d\nIt is strongly urged by counsel for plaintiff that the cases of Neeley v. Union Potash & Chemical Co., 47 N.M. 100, 137 P.2d 312, and Jones v. International Minerals & Chemical Corporation, 53 N.M. 127, 202 P.2d 1080, support their claim that an \u201cact,\u201d or course of conduct, constitutes a safety device within the meaning of the statute in question. We do not so view the holding in either case. We shall discuss the last mentioned case first. The instruction quoted by plaintiff in her brief from our opinion in Jones v. International Minerals & Chemical Corp., supra, rather than lending support to plaintiff\u2019s position on the question discussed, supports correctness of the appraisal given the statute by defense counsel. Plaintiff\u2019s counsel claim the instruction, which we shall quote presently, is given approval by us in our opinion in the Jones case. If so, it in no manner aids the plaintiff. The instruction mentioned reads:\n\u201c10. You are instructed that the term \u2018safety device\u2019 as used in the Workmen\u2019s Compensation Act of this State means and includes all things which will lessen danger or secure safety. It may mean a device attached to or a part of or connected with a machine or industrial unit or one not necessarily physically attached to or a part of the machine or industrial unit causing injury. The term is intended to include and does include any instrumentality provided hy an employer for use hy an employee in the operation or repair of a machine or the performance of his duty which in the operation or repair of a machine or in performance of his duty reduced danger or hazard to the employee.\u201d\nIt is readily observed from a reading of this instruction that it interprets the \u201cthings\u201d mentioned which \u201cwill lessen danger or secure safety,\u201d as something tangible, concrete, that can be seen, touched or felt \u2014 an \u201cinstrumentality\u201d \u2014 as opposed to a rule or course of conduct. The instruction uses the word \u201cthings,\u201d \u201cdevice attached to,\u201d \u201cinstrumentality provided,\u201d all suggestive of concrete, tangible gadgets\u2014 or let us say \u201cdevices.\u201d We see nothing in plaintiff\u2019s sub-points A and B to merit a holding that a safety device is anything other than what the phrase implies \u2014 a visible article designed to promote safety and avoid accidents.\nIn Neeley v. Union Potash & Chemical Co., supra [47 N.M. 100, 137 P.2d 317], we dealt with a factual situation which involved two methods for effecting \u201cgrounding\u201d of machinery against electrical current \u2014 (a) one by using a grounded cable consisting of four wires, one of which was a ground wire; and (b) the other the attaching of a ground wire to the frame of the machine and running it into the ground. The employment of either method constituted a providing by employer of something tangible, a \u201cthing,\u201d or device, capable of being identified, to be employed by the workman for his own safety. This falls far short of establishing that an \u201cact,\u201d or \u201ccourse of conduct,\u201d is a safety device.\nA careful reading of our opinion in the Neeley case leaves one fairly impressed that the language: \u201cWe hold that the statute requires the grounding of the machinery in question, as a \u2018safety devices required by law\u2019 * * \u201d comprehends the physical use or employment of the ground wire, not the scientific result which the act or practice placing it in the earth\u2014 \u201cgrounding\u201d- \u2014 entails. Significantly, such a meaning is emphasized by the constant use of the term \u201cgrounding device,\u201d as found throughout the opinion.\nSo considered, we see no inconsistency between our present holding and our decision in the Neeley case. To whatever extent that case may be viewed as holding a \u201crule of conduct,\u201d or \u201cspecific safety practice,\u201d enjoined by law (dissociated from the use of a tangible safety device likewise required hy law) will support imposition against an employer of the penalty award, we decline to follow it as a pi-ecedent.\nSignificantly, there is not a case in New Mexico, including the Neeley case, that does not tie the safety device mentioned to something \u201ctangible\u201d \u2014 in the Neeley case a \u201cwire\u201d for grounding; in Pino v. Ozark Mining and Smelting Co., 35 N.M. 87, 290 P. 409, it was \u201cgoggles\u201d to protect the workmen\u2019s eyes from flying particles; in Thwaits v. Kennecott Copper Corporation, 52 N.M. 107, 192 P.2d 553, it was a hand rail on a platform to protect the workman from falling; and, in Apodaca v. Allison & Haney, 57 N.M. 315, 317, 258 P.2d 711, it was a gas indicator to give notice of the presence of deadly gases, \u2014 to cite some typical cases.\nIn their third sub-point counsel for plaintiff carry the argument a step further by advancing the claim that the magazine mentioned in 1953 Comp. \u00a7 63-25-3, is a safety device within the statute in question. Recognizing, however, that the explosives responsible for decedent\u2019s death were not at the time in any building or structure meeting the popular conception of a \u201cmagazine,\u201d the contention is made that by placing the detonators and blasting caps in a truck where explosives also were at the time carried, the truck itself was being employed as a \u201cmagazine\u201d for transport of the explosives and separate trucks, treated as \u201cmagazines,\u201d not being provided, a violation of \u00a7 63-25-3 ensued, thereby invoking the so called safety statute for plaintiff\u2019s benefit.\nIt requires some refinement of reasoning to contemplate a \u201ctruck\u201d as a \u201cmagazine,\u201d and equally as much to visualize an ordinary building or structure as the \u201cmagazine\u201d mentioned in the statutes quoted and thus a safety device within the meaning of the safety statute. Here, as in the sections of the statute mentioned in plaintiff\u2019s sub-points A and B, it being \"the \u201cstoring\u201d that is proscribed by \u00a7 63-25-3, we find a certain course of conduct condemned by the statute. It is the doing of a certain act that is outlawed, not the providing of a named safety device.\nWe might very well agree that where an omission to employ the \u201csafety device\u201d enjoined by 1953 Comp. \u00a7 63-25-1 (not here one of the sections whose violation is specifically charged against defendant), results in injury or death to the employee, \u25a0benefit of the safety statute may be claimed by him. While, generally, the complaint, or claim, charges a violation of \u00a7\u00a7 63-25-3, 63-25-13 and 63-20-1, when it begins to particularize it is only a violation of \u00a7 63-25-13 prohibiting the \u201cstorage of detonators and fuses with explosives\u201d and the failure to provide a separate magazine for storage of said detonators and fuses \u201cseparate and apart from a magazine for storage of explosives,\u201d that is specifically charged in the complaint.\nWe invite a reading of 1953 Comp. Article 25 of chapter 63, on \u201cmines and mining.\u201d Article 25 deals with \u201cExplosives for mines other than coal\u201d. We defy anyone to read this Article 25 from beginning to end and find any justification whatever for converting by judicial construction the \u201cmagazine\u201d of which the legislature is speaking in this chapter into a \u201ctruck\u201d on the way to work with a group of employees and their equipment. Note the language of 1953 Comp. \u00a7 63-25-1, reading:\n\u201cStorage of explosives \u2014 Magazines. \u2014Explosives shall be stored on the surface only, except as hereinafter provided, in magazines located at safe distances away from all mine openings, mine buildings, or inhabited dwellings, these distances to correspond so far as possible with recommendations as set forth by explosive manufacturers.\u201d\nOther sections, each with appropriate headings follow, such as \u201cConstruction of magazines \u2014 Lights\u201d, \u00a7 63-25-2; \u201cDetonators,\u201d \u00a7 63-25-3; \u201cLocation of magazines \u2014 \u2022 Safety requirements\u201d, \u00a7 63-25-4; \u201cMagazine to be locked \u2014 Smoking and inflammable material prohibited\u201d, \u00a7 63-25-5; \u201cAuxiliary magazines \u2014 Location\u2014Amount of explosives stored\u201d, \u00a7 63-25-7, and so on and on. Of course, there are to be found in the chapter numerous statutory regulations to be observed by the employee whose violation will, if causing injury or death to him, decrease his compensation by 50 per cent, simply because the safety statute so provides. Likewise, there are to be found in the chapter numerous statutory regulations, shall we call them \u201cspecific safety practices,\" enjoining upon the employer the doing or refraining from doing of certain acts looking to the safety of the employee, but delinquency of the employer with respect to these acts of omission or commission do not subject the employer to imposition of the penalty award simply because the safety statute does not so provide.\nFinally, plaintiff\u2019s counsel seize upon the language of 1953 Comp. \u00a7 63-20-1 enjoining upon the employer the duty to provide a place to work that is \u201creasonably safe,\u201d as providing for a \u201csafety device\u201d required by law. The statute mentioned reads:\n\u201cEvery mine employer shall furnish such employment and such place of employment as shall be reasonably safe for the employees therein, and shall furnish and use safety devices and safeguards, adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.\u201d 1953 Comp. \u00a7 63-20-1.\nThe claim that the requirement of a \u201csafe place to work\u201d is a \u201csafety device\u201d within the meaning of safety statute is confronted by all the defects of intangibility encountered in a consideration of the claims already discussed and disposed of. Counsel for defendant place some reliance on a withdrawn opinion in the case of Thwaits v. Kennecott Copper Corporation, 52 N.M. 107, 192 P.2d 553, in which the majority opinion first filed did hold, as counsel state, that failure to provide a \u201csafe place to work,\u201d represented a legislative effort to provide a safety device within the intendment of the safety statute. The writer along with Mr. Justice McGhee registered a vigorous dissent to that conclusion and, upon rehearing, the opinion so holding was withdrawn and abandoned when it was pointed out to us by amicus curiae that there was a specific statute requiring a railing to be placed around the platform in question as a safety device. As counsel state, not much satisfaction is to be had by either party from the Thwaits case but, if either party is to profit by it, the defendant may claim the greater comfort, it now seems to us, since a holding that would easily have supported the conclusion reached, if sound, was expressly abandoned in favor of a more certain and solid foundation.\nIf further proof were needed to establish the correctness of defendant\u2019s position on the question before us, namely, that the safety device contemplated by the statute in question is something tangible and concrete, which can be seen, touched and described, it is to be found in the closing paragraph of the statute, to-wit:\n\u201cAnd Provided further, that no employee of such employer shall file a ' claim for such additional fifty (50%) per centum compensation under the Workmen\u2019s Compensation Act on the basis of an injury, nor shall a dependent of a deceased employee file a claim on the basis of the death of a workman, suffered because of the lack of a safety device, unless said claim shall identify the specific safety device which it is claimed zvas not furnished by the employer; and the employer shall be under a like duty to specifically allege the specific safety device zjvhich it is claimed an employee failed to use before the employer may claim a reduction of fifty (50%) per centum as herein provided (Emphasis ours.) 1953 Comp. \u00a7 59-10-7.\nThe legislature was talking about tangible things that could be seen and described, when it enacted the italicized language as a condition to stating a cause of action for recovery of the extra compensation, or for reducing as against a claimant the amount of the base compensation. How, may we ask, can the pleader describe1 the failure to furnish a safety device claimed to consist of conduct amounting to negligence, in purported compliance with this statute? And, by the same token, how is the employer, seeking a reduction in base compensation, to describe the \u201csafety device\u201d which it is said the claimant (work-, man) failed to use, if only his act of orrjission was one amounting to \u2022 negligence ? This language in the closing paragraph of the governing statute, quoted above, seems to us absolutely conclusive of the correctness of the interpretation counsel for defendant have given the statute which the trial court adopted and we approve.\nIt follows from what has been said that the judgment of the trial court is correct and should be affirmed.\nIt will be so ordered.\nCOMPTON, C. J., and C. ROY ANDERSON, District Judge, concur.\nLUJAN and McGHEE, JJ., dissenting.", "type": "majority", "author": "SADLER, Justice." } ], "attorneys": [ "Hannett & Hannett, Albuquerque, Edison C. Serna, Silver City, for appellant.", "Ben Shantz, Silver City, H. Vearle Payne, Lordsburg, I. M. Smalley, Deming, for appellee." ], "corrections": "", "head_matter": "299 P.2d 84\nGenoveva MONTOYA, as next friend of Maria Olivia Portillo, dependent of Jose Salvador Portillo, Deceased, Claimant-Appellant, v. KENNECOTT COPPER CORPORATION, Chino Mines Division, Santa Rita, New Mexico, Employer-Appellee.\nNo. 6035.\nSupreme Court of New Mexico.\nJune 25, 1956.\nHannett & Hannett, Albuquerque, Edison C. Serna, Silver City, for appellant.\nBen Shantz, Silver City, H. Vearle Payne, Lordsburg, I. M. Smalley, Deming, for appellee." }, "file_name": "0268-01", "first_page_order": 296, "last_page_order": 305 }