{ "id": 2847237, "name": "Roy H. LEE, Claimant, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Insurer, and Valley Building Company, Employer, Defendants-Appellees", "name_abbreviation": "Lee v. United States Fidelity & Guaranty Co.", "decision_date": "1960-01-07", "docket_number": "No. 6589", "first_page": "351", "last_page": "355", "citations": [ { "type": "official", "cite": "66 N.M. 351" }, { "type": "parallel", "cite": "348 P.2d 271" } ], "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": "65 N.M. 270", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847652 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0270-01" ] }, { "cite": "59 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589309 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/59/0492-01" ] }, { "cite": "57 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841953 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/57/0383-01" ] }, { "cite": "156 A.L.R. 1344", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "49 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841142 ], "weight": 3, "pin_cites": [ { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/nm/49/0004-01" ] }, { "cite": "48 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560797 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0185-01" ] }, { "cite": "46 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563082 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/46/0118-01" ] } ], "analysis": { "cardinality": 523, "char_count": 9324, "ocr_confidence": 0.674, "pagerank": { "raw": 1.5900120122178358e-07, "percentile": 0.6819252782691192 }, "sha256": "4b849743d4aabe3817d75779b8b8fbbafe3b7ea87bea52df801b819feaa10e72", "simhash": "1:5cbdb0433d14b49f", "word_count": 1603 }, "last_updated": "2023-07-14T18:05:25.239395+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McGHEE, COMPTON and CARMODY, \u25a0JJ., concur.", "LUJAN, C. J., not participating." ], "parties": [ "Roy H. LEE, Claimant, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Insurer, and Valley Building Company, Employer, Defendants-Appellees." ], "opinions": [ { "text": "MOISE, Justice.\nThis is a workmen\u2019s compensation case growing out of an injury to appellant in the course of his employment as a carpenter and cabinet maker in which he lost a portion of his left thumb by amputation and his left index finger was severely cut leaving it permanently stiff and partially paralyzed. As a result of this injury appellant\u2019s thumb and index finger are very tender and sensitive to cold so that during cold weather he is unable to do any outside work. Appellant is a man who was 58 years old at the time of the injury, has a tenth grade education, is right-handed, and has done nothing but carpenter work during his adult years. He is what is known as a \u201cfinish\u201d worker. Since his injury he has continued to work at his trade, but at a materially reduced hourly wage, assertedly because of his inability to perform as efficiently as previously.\nAt the trial before a jury, over the objections of appellee, the court submitted two questions to the jury, one as to the percentage of disability suffered by appellant to the body as a whole because of the injury, and the other as to the percentage of disability to the left hand suffered by virtue of the injury. The jury answered that appellant suffered 30% disability to the body as- a whole and 35% disability to the hand. Thereafter the court, upon further consideration set aside the verdict as to injuries to the body as a whole and entered judgment for appellant for 35% loss of use of the hand (non-dextrous member). This judgment amounted to 35 weeks at $30 per week, or a total of $1,-050.\nAppellee pleaded that prior to employment of an attorney by appellant, he had been offered the sum of $1,050 in full compromise and settlement of all claims, and accordingly the court made no allowance of attorney fees for appellant\u2019s attorneys.\nAppellant complains here that (1) \u201cthe court erred in refusing to enter judgment for plaintiff to the extent of 30% partial permanent disability to the body as a whole; and in limiting claimant\u2019s recovery to 35% disability of the hand,\u201d and (2) \u201cthat the court erred in failing to award plaintiff a reasonable attorneys fee.\u201d\nIn his brief appellant states:\n\u201cThe real question in this case springs from the fact that claimant did not sustain any direct injury to any part of his body other than the hand, and defendants really contend that since there was no direct injury to any part of the' body other than the hand, that claimant is limited to recovery for a scheduled injury for-mere partial loss of use of the hand.\u201d\nHe then quotes from the testimony concerning his inability to perform the same amount of work as previously, his reduction in wages, and the pain in his hand when the weather is cold. He then cit\u00e9s the cases of Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410, and Gonzales v. Pecos Valley Packing Co., 48 N.M. 185, 146 P.2d 1017, together with Larson on Workmen\u2019s Compensation and numerous cases from other jurisdictions in support of his position that if the claimant suffers a disability as a result of an injury to a scheduled member other than the mere loss of use thereof, then he may recover under the general disability provisions.\nThe contentions here advanced by appellant we consider as having been laid to rest in the case of Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000, 1004, decided by this Court in 1945. In that case the same argument was made as is advanced by appellant here and this Court stated:\n\u201c * * * The basic error in defendants\u2019 argument under this point is that it fails to distinguish between the actual physical injury directly suffered by the particular member and the general bodily disability resulting therefrom.\n\u201c * * * Defendants misappraise our holding in the Gonzales case. There claimant\u2019s arm had been severed and there was no showing, as here, of such general impairment to the rest of the body by reason of the particular injury, except as to some over-all impairment of performance such as would naturally follow in any case from the loss of such a member. We there recognized the difference and distinguished the circumstances from that shown in the case of Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410, where there was impairment to the claimant\u2019s whole body as the result of the injury to his leg, and where he was held to be entitled to compensation for total and permanent disability.\u201d\nand then concluded as follows:\n\u201cAs we appraise the Mathews and Gonzales cases it is this: Where the injury is confined to a scheduled member and there is no impairment of any other part of the body because of such injury, compensation is limited to that provided by the statute; this is true even though other considerations such as age, lack of training, or other conditions peculiar to the individual make a case where the injury to the member may result, in the particular case, to some, if not total and permanent, disability.\u201d\nHere, the injury including the pain from the cold is confined to the hand, with the remainder of the body being unaffected. Accordingly, as stated in Gonzales v. Pecos Valley Packing Co., supra, and reaffirmed in Lipe v. Bradbury, supra, compensation is limited to that provided for injury to the hand, even though age, lack of training for other work, \u201cor other conditions peculiar\u201d to appellant has resulted in reduced ability in him to perform his duties with a resultant reduction of earnings.\nThe rule as announced by this Court is in accord with the reasoning and discussion in Larson on Workmen\u2019s Compensation Law, \u00a7 58.20. See also note in 156 A.L.R. 1344. In the light of our own decisions on the point in issue, cases from other jurisdictions are not helpful.\nAppellant would avoid the result indicated above by pointing out that the question was one for the jury, and argues that since it was properly submitted, and the jury found 30% disability to the entire body, this finding must be \u201csustained and upheld, unless it can be said, that such finding was not supported by any substantial evidence and was incorrect as a matter of law.\u201d\nIn our view of the rule of Gonzales v. Pecos Valley Packing Co., supra, as set forth above, there was no substantial evidence which authorized submitting to the jury the question of disability to the body as a whole, and accordingly the finding by it in this regard cannot be upheld. This is true under the rule as set down in Sanchez v. Gomez, 57 N.M. 383, 259 P.2d 346. We also consider our conclusions to be in accord with what was said in Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 287 P.2d 61. There is nothing to the contrary in Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067, the last pronouncement by this Court on the general subject.\nThis leaves only the question of whether or not the court erred in denying appellant recovery of attorney fees. Under \u00a7 59-10-23, N.M.S.A.1953, as amended by Ch. 274, N.M.S.L.1955, it was provided that \u201cwhere compensation to which any person shall be entitled * * * shall be refused and the claimant shall thereafter collect compensation through court proceedings in an amount in excess of the amount tendered by the employer prior to the court proceedings then the compensation to be paid the attorney for the claimant shall be fixed by the court trying the same. * * * \u201d\nAppellant admits that this means that the court shall not allow an attorney fee unless the recovery in court \u201cexceeds the amount tendered by the employer prior to court proceedings.\u201d He argues however, that the tender of payment must be unqualified and unconditional, and that in the instant case the only \u201ctender\u201d made was a qualified one based upon an offer to compromise and settle appellant\u2019s claim for a given amount, upon condition appellant would drop and abandon his claim for additional amounts. Appellant asserts that in order to have'the benefit of the statute and not be responsible for attorney fees, it was incumbent on appellee to pay or-tender the money \u201cwith no strings attached.\u201d\nIn this we do not agree with appellant. The employer had offered him $1,050 being everything to which he was legally entitled as subsequently determined in court. That the employer wanted a release from any other or greater claims before paying the amount is not unreasonable. If appellant, upon advice of counsel wanted to assert additional claims, it certainly is not asking too much to have him and his attorney assume the risk so far as payment pf attorney fees is concerned. That this is what was contemplated by the statute quoted above is clear. Appellee offered the exact amount for which judgment was subsequently entered, properly as we here conclude, and therefore the court had no power under the statute to grant attorney fees. If the tender had been for a lesser amount than subsequently recovered the rule would be otherwise.\nFinding no error, the judgment appealed from is affirmed, and\nIt is so ordered.\nMcGHEE, COMPTON and CARMODY, \u25a0JJ., concur.\nLUJAN, C. J., not participating.", "type": "majority", "author": "MOISE, Justice." } ], "attorneys": [ "Schauer & Stiff, Roswell, for appellant.", "Sanders & Bruin, Roswell, for appellees." ], "corrections": "", "head_matter": "348 P.2d 271\nRoy H. LEE, Claimant, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Insurer, and Valley Building Company, Employer, Defendants-Appellees.\nNo. 6589.\nSupreme Court of New Mexico.\nJan. 7, 1960.\nSchauer & Stiff, Roswell, for appellant.\nSanders & Bruin, Roswell, for appellees." }, "file_name": "0351-01", "first_page_order": 375, "last_page_order": 379 }