{
  "id": 2845768,
  "name": "Roy WEST, Claimant-Appellant, v. VALLEY SALES & SERVICE CO., Employer, and Fireman's Fund Insurance Company, Insurer, Defendants-Appellees",
  "name_abbreviation": "West v. Valley Sales & Service Co.",
  "decision_date": "1959-09-09",
  "docket_number": "No. 6557",
  "first_page": "149",
  "last_page": "151",
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    "name": "Supreme Court of New Mexico"
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  "last_updated": "2023-07-14T18:05:25.239395+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "McGHEE, COMPTON, CARMODY and MOISE, JJ., concur."
    ],
    "parties": [
      "Roy WEST, Claimant-Appellant, v. VALLEY SALES & SERVICE CO., Employer, and Fireman\u2019s Fund Insurance Company, Insurer, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "LUJAN, Chief Justice.\nAppellant (claimant below) sued his employer the Valley Sales & Service Co., and its insurer Fireman\u2019s Fund Insurance Co., for compensation benefits for personal injuries sustained by him in September, 1955 while loading a deep freeze weighing 500 pounds on a truck. Claim was filed November 27, 1957. By answer the defendants set forth that the claim failed to state facts sufficient to constitute a claim under the workmen\u2019s compensation act, and further that the claim was barred because not filed within the time required by law for filing workmen\u2019s compensation claims. Thereafter the defendants filed a motion for summary judgment which was based solely on the proposition that appellant\u2019s claim was barred by the provisions of Section 59 \u2014 10\u2014 13, 1953 Compilation, which provides in part:\n\" * * * it shall be the duty of such \u2022workman, insisting upon the payment thereof, to file a claim therefor in the manner and within the time hereinafter provided. In the event he shall either fail * * * to file such claim within the time hereinafter required, his claim for such compensation and all right to the recovery of the same and the bringing of any legal proceeding for the recovery thereof shall be and is hereby forever barred. * * * such workman shall be entitled to enforce the payment thereof by filing (his) * * * claim * * * not later than one (1) year after such refusal or failure of the employer so to pay the same * * * \u201d\u2022\nAt the hearing on the motion, appellant\u2019s deposition, taken by stipulation of counsel for the respective parties, was presented and considered by the court. The court sustained said motion, entered a judgment \u25a0dismissing appellant\u2019s claim and he appeals.\nThe appellant seeks a reversal of the district court\u2019s judgment upon the grounds that: \u201c(1) The insurance carrier failed to pay or refused to pay claimant in December 1956; and (2) that claim filed November 27, 1957, was within the one year period of the statute 59-10-13, N.M. Statutes 1953 Annotated.\u201d\nWe will take appellant\u2019s grounds for reversal of the judgment in inverse order.\nUnder his second proposition appellant contends that since the offer of December, 1956 was refused by him, such offer and refusal was tantamount to a failure or refusal by the company to pay compensation benefits, and that his claim filed on November 27, 1957, was within the year\u2019s limitation. This contention is untenable.\nThe record discloses that the alleged accident and injury occurred in September of 1955; that no compensation was ever paid to the claimant; and that no claim for compensation was every filed until the institution of this suit on November 27, 1957. On this phase of the case the appellant by his own testimony admits that he never did file a claim for compensation until his attorney brought this suit. In his deposition appellant testified:\n\u201cQ. You hadn\u2019t made and signed any written claim? A. No, sir I hadn\u2019t.\n\u201cQ. And given it to your employer ? A. I had not.\n\u201cQ. And you never made and signed any written claim and sent it to your insurance company? A. No, sir.\n\u201cQ. As a matter of fact, you never had made and signed and filed with your employer a written claim for compensation? A. No, sir.\n\u201cQ. Nor did you ever make and file any written claim with the insurance carrier for compensation ? A. No, sir.\n\u201cQ. The only claim that you have filed is the claim that Mr. Newell (Counsel) filed for you in this suit? A. That\u2019s right.\u201d\nThe only claim shown by the record, and admitted by the appellant, is the filing of this action November 27, 1957, more than two years after the accident arid injury, and under the provisions of Section 59\u201410\u201413, supra, it cannot be maintained. Cf. Vukovich v. St. Louis, Rocky Mountain & Pacific Company, 40 N.M. 374, 60 P.2d 356; and Samora v. Town of Las Cruces, 45 N.M. 75, 109 P.2d 790.\nAppellant\u2019s first proposition is based upon the fact that a representative of the defendant insurance company, without any previous conversation, negotiation or agreement being had with the appellant relative to any compromise settlement, left a check in the sum of $200 with appellant\u2019s employer to be delivered to him upon his signing certain papers, but which offer he refused to accept.\nIn his deposition the appellant testified:\n\u201cQ. And in December, 1956, after you had received medical care at the hands of Doctor Gay and Doctor Paul Jones and Doctor Rogers, as I understand it, the insurance company, Mr. Cory, for the insurance company offered you $200.00 for a release, is that right? A. He didn\u2019t offer it to me and never did mention it to me. My employer called me in the office one morning and said that \u2014 he says I have got something here for you and I asked him what it was and he had a $200.00 check out on the desk with some papers for me to sign and I asked him what that was and he said, \u2018Don\u2019t you know ?\u2019 and I said, T don\u2019t\u2019 and he said, \u2018Haven\u2019t _ you talked to the insurance company about a settlement?\u2019 and I said T haven\u2019t, none whatever,\u2019 and I said \u2018send the check back to them, I am not looking for any check, I am looking for my back to be cured.\u2019 \u201d\nWe are of opinion, and so hold, that the purported offer of $200 made in December, 1956 as a compromise settlement and the payment of medical expenses up. to that date did not extend the limitations imposed by Section 59-10-14 of 1953 Compilation, the claim having become barred by the provisions of Section 59-10-13 supra. Cf. Garcia v. New Mexico State Highway Department, 61 N.M. 156, 296 P.2d 759; Silva v. Sandia Corporation, 10 Cir., 246 F.2d 758.\nIt is apparent there is no theory upon which it may be held that the claim herein was filed within the statutory period. The requiremijnt as to beginning the action is imperative and cannot be ignored, and the ruling of the district court in sustaining the motion for summary judgment must be affirmed.\nIt is so ordered.\nMcGHEE, COMPTON, CARMODY and MOISE, JJ., concur.",
        "type": "majority",
        "author": "LUJAN, Chief Justice."
      }
    ],
    "attorneys": [
      "J. B. Newell, Las Cruces, for appellant.",
      "W. C. Whatley, Las Cruces, for appellees."
    ],
    "corrections": "",
    "head_matter": "343 P.2d 1038\nRoy WEST, Claimant-Appellant, v. VALLEY SALES & SERVICE CO., Employer, and Fireman\u2019s Fund Insurance Company, Insurer, Defendants-Appellees.\nNo. 6557.\nSupreme Court of New Mexico.\nSept. 9, 1959.\nJ. B. Newell, Las Cruces, for appellant.\nW. C. Whatley, Las Cruces, for appellees."
  },
  "file_name": "0149-01",
  "first_page_order": 173,
  "last_page_order": 175
}