{ "id": 2852320, "name": "Sarah ROSEBERRY, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY and W. A. Starkovich, Defendants-Appellees", "name_abbreviation": "Roseberry v. Phillips Petroleum Co.", "decision_date": "1962-02-28", "docket_number": "No. 6956", "first_page": "19", "last_page": "24", "citations": [ { "type": "official", "cite": "70 N.M. 19" }, { "type": "parallel", "cite": "369 P.2d 403" } ], "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": "58 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587676 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0525-01" ] }, { "cite": "48 N.M. 507", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560793 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0507-01" ] }, { "cite": "64 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344132 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0445-01" ] }, { "cite": "64 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346642 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0459-01" ] }, { "cite": "35 N.M. 240", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558023 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0240-01" ] }, { "cite": "46 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563106 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0221-01" ] }, { "cite": "54 N.M. 83", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0083-01" ] }, { "cite": "63 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777518 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/63/0274-01" ] }, { "cite": "64 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344824 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0106-01" ] }, { "cite": "65 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845555 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0347-01" ] }, { "cite": "345 P.2d 217", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2846032, 2846315 ], "opinion_index": 0, "case_paths": [ "/nm/66/0201-02", "/nm/66/0201-01" ] }, { "cite": "64 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345254 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0319-01" ] }, { "cite": "366 P.2d 848", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2790903 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0320-02" ] }, { "cite": "69 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791353, 2790903 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0320-01", "/nm/69/0320-02" ] }, { "cite": "69 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2786926 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0324-01" ] }, { "cite": "87 A.2d 5", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "9 N.J. 56", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1325540 ], "opinion_index": 0, "case_paths": [ "/nj/9/0056-01" ] }, { "cite": "242 F.2d 220", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 413563 ], "opinion_index": 0, "case_paths": [ "/f2d/242/0220-01" ] }, { "cite": "100 U.S.App.D.C. 68", "category": "reporters:state", "reporter": "U.S. App. D.C.", "opinion_index": 0 }, { "cite": "261 P.2d 118", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "43 Wash.2d 345", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5009835 ], "opinion_index": 0, "case_paths": [ "/wash-2d/43/0345-01" ] }, { "cite": "247 Minn. 515", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1747168 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/minn/247/0515-01" ] }, { "cite": "67 N.M. 137", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715751 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0137-01" ] }, { "cite": "51 N.W.2d 24", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "260 Wis. 403", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8679157 ], "opinion_index": 0, "case_paths": [ "/wis/260/0403-01" ] }, { "cite": "102 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ohio St. 295", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1057273 ], "opinion_index": 0, "case_paths": [ "/ohio-st/156/0295-01" ] }, { "cite": "122 N.E.2d 884", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ind.App. 487", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1357808 ], "opinion_index": 0, "case_paths": [ "/ind-app/125/0487-01" ] }, { "cite": "62 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714492 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/62/0038-01" ] } ], "analysis": { "cardinality": 608, "char_count": 10886, "ocr_confidence": 0.73, "pagerank": { "raw": 3.4862049036371106e-07, "percentile": 0.8820243960169106 }, "sha256": "443a2356d5757cd24bab17bc664ba5dcd499745179e0a94cd6e82f4219cefb3f", "simhash": "1:17b781431826fe3f", "word_count": 1825 }, "last_updated": "2023-07-14T21:50:52.194101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CARMODY and CHAVEZ, JJ., concur.", "COMPTON, C. J., and MOISE, J., not participating." ], "parties": [ "Sarah ROSEBERRY, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY and W. A. Starkovich, Defendants-Appellees." ], "opinions": [ { "text": "NOBLE, Justice.\nTwo questions are presented by this appeal: first, is the New Mexico Workmen\u2019s Compensation Act a bar to an action against the employer by a third party for her damage caused by the employer\u2019s negligent injury of an employee, covered by the Act and receiving compensation? And, second, does the Workmen\u2019s Compensation law bar an action by a third party against a fellow-employee of an injured workman for damage caused such third party by the negligent injury of such workman?\nThe action is by appellant, as wife of Dwayne Roseberry, alleging the injury of her husband on September 22, 1959, arising out of and in the course of his employment by reason of the negligent acts of his employer, Phillips Petroleum Company, and W. A. Starkovich, a fellow-employee, both appellees herein. The action is grounded upon appellant's loss of her husband\u2019s consortium by reason of his injuries resulting in paralysis. This appeal is from a summary judgment dismissing the complaint upon the sole ground that the action against both appellees is barred by the Workmen\u2019s Compensation law. No material issues of fact are involved. The sole question on appeal is whether appellees were entitled to judgment as a matter of law. Both parties agree that the precise questions are ones of first impression in this jurisdiction.\nAppellant contends that the wife\u2019s right of action for damage sustained by her as a result of injuries to her husband is not denied by the Workmen\u2019s Compensation law; that the husband may be allowed to accept benefits under the Act; and, that she may nevertheless recover in an independent action for her damages as distinguished from the injuries to her husband.\nAppellant asserts that \u00a7 59-10-4, N.M. S.A., 1953 Comp, is the heart of the exclusion provisions of the Workmen\u2019s Compensation law, and that it does not deny the spouse of an injured workman any remedy which such spouse may have by reason of her damage as distinguished from the injury to the workman. It is contended that under statutory provision, supra, an election by the employer and employee to be covered by the Act amounts only to a surrender by the employer and employee of all other rights and remedies \u201cand shall bind the employee himself, and for compensation for his death, shall bind his personal representative, his widow, and next of kin * * Appellant contends that only if the workman fails to survive are persons other than the workman denied a remedy; that she is not a widow, and, therefore, is not denied her right of action for her independent damage. It is argued that to so construe the statute would be to write into it something not provided by the legislature and would be judicial legislation.\nWe shall first discuss whether such action lies against the employer of the injured workman. The answer, we think, is to be found in \u00a7 59-10-5, N.M.S.A., 1953, the pertinent portion of which reads :\n\u201cAny employer who has elected to and has complied with the provisions of this act * * * shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as in this act provided; and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such * * * personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this act provided.\u201d\nThe language of the New Mexico statute is very restrictive and all embracing. Beal by Boatwright v. Southern Union Gas Co., 62 N.M. 38, 304 P.2d 566. It expressly limits the liability of the employer and abolishes all rights and remedies of every person whomsoever against the employer except as provided by the Act. The basis upon which the Workmen\u2019s Compensation law rests is that it imposes upon the employer an absolute, though limited, liability, not based upon the principle of tort but upon compensation to the injured employee regardless of fault and free from the common-law defenses of assumption of risk, contributory negligence and negligence of a fellow-employee, in exchange for a release from the unlimited liability to which he was theretofore subject upon the theory of negligence. Stainbrook v. Johnson County Farm Bureau, Co-op Ass\u2019n, 125 Ind.App. 487, 122 N.E.2d 884; Bevis v. Armco Steel Corp., 156 Ohio St. 295, 102 N.E.2d 444; Guse v. A. O. Smith Corp., 260 Wis. 403, 51 N.W.2d 24.\nIt is clear to us that the injury for which appellant seeks recovery resulted from an accidental injury sustained by her husband arising out of and in the course of his employment. She is, therefore, seeking recovery against the employer for her damage which is dependent, nevertheless, upon the employee\u2019s compensable injury for which the employer is paying the compensation provided by law.\nWhile the precise question involved here was not determined in Royal Indemnity Co. v. Southern California Petroleum Corp., 67 N.M. 137, 353 P.2d 358, where it was held that the language of \u00a7 59-10-5, supra, \u201cexpressly limits the liability of the employer and destroys the common-law right of indemnity\u201d or in Beal by Boatwright v. Southern Union Gas Co., supra, where we said:\n\u201cThe limitation of employer's liability for injuries sustained by an employee covered by the Workmen\u2019s Compensation Act covers all instances where that injury is sought to be made the basis for further and additional liability by the employee or others in his behalf, and indirect liability for such injury is also foreclosed both by the terms of the act and because the employer\u2019s liability for such injury is not in tort.\u201d\nour holding, here, is merely a logical extension of those decisions.\nWe have examined the authorities cited by appellant and find them not in point under the language of our statute or the factual situation presented in the instant case. Our statutes could scarcely he more explicit in abolishing every statutory or common-law right or remedy against the employer not provided by the Workmen\u2019s Compensation Act, accruing to any person whomsoever, which arises by reason of such injury.\nOther courts which have considered similar questions under statutes having limitations similar to ours, have reached a conclusion that the spouse of such injured employee is barred by the limitations of the Workmen\u2019s Compensation Act from maintaining an independent action against the employer arising out of or by reason of the injury to the employee. Hartman v. Cold Spring Granite Co., 247 Minn. 515, 77 N.W.2d 651; Ash v. S. S. Mullen, Inc., 43 Wash.2d 345, 261 P.2d 118; Guse v. A. O. Smith Corp., supra; Stainbrook v. Johnson Farm Bureau, Co-op Ass\u2019n, supra; Bevis v. Armco Steel Corp., supra; Smither & Company, Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220; Danek v. Hommer, 9 N.J. 56, 87 A.2d 5.\nFor her second point, appellant complains that the trial court erred in dismissing the action on summary judgment as to the defendant Starkovich, a fellow-employee with appellant\u2019s husband, and whose negligence is alleged to have proximately caused the injury to her husband and resulted in her independent damage. The motion for summary judgment was granted upon the sole ground that appellant\u2019s action against both appellees was barred by the Workmen\u2019s Compensation law. At the time of the entry of that judgment, it had not been determined in this jurisdiction whether an employee could maintain an action against a fellow-employee for negligent injury. We recently held in Hockett v. Chapman, 69 N.M. 324, 366 P.2d 850, that an employee\u2019s action is not barred. It follows that the Workmen\u2019s Compensation law does not bar the right of a third person to recover for damage to such third person arising out of the negligent injury by one employee of a fellow-employee. The action of the trial court in dismissing the complaint against the appellee Starkovich was error.\nAppellees, however, for the first time argue, on appeal, that a wife has neither a common-law nor a statutory right of action for loss of consortium of her husband. They urge that the judgment should be affirmed if it can be supported on any legal ground, even though the lower court\u2019s decision was upon an incorrect basis. The only pleadings were the complaint and motion for summary judgment. The summary judgment found that no genuine issue of fact exists and that the action is barred by the provisions of the Workmen\u2019s Compensation Act. Judgment was accordingly entered for both appellees and against appellant. The question of appellant\u2019s right to maintain an action for loss of consortium was neither raised nor determined by the trial court.\nWe have repeatedly held that matters, other than jurisdictional, not urged in the court below cannot be raised for the first time on appeal. Hidalgo v. Cortese, No. 6867, 69 N.M. 320, 366 P.2d 848 (Opinion, November 8, 1961) ; Scofield v. J. W. Jones Construction Co., 64 N.M. 319, 328 P.2d 389; Terry v. Biswell, 66-N.M. 201, 345 P.2d 217; Metzger v. Ellis, 65 N.M. 347, 337 P.2d 609; Warren v. Spurck, 64 N.M. 106, 325 P.2d 284; Danz v. Kennon, 63 N.M. 274, 317 P.2d 321; Sena v. Sanders, 54 N.M. 83, 214 P.2d 226; Lord v. Gallegos, 46 N.M. 221, 126 P.2d 290; Thomas v. Johns, 35 N.M. 240, 294 P. 327, to cite only a few. Under Supreme Court Rule 20:\n\u201cNone but jurisdictional questions shall be first raised in the Supreme Court.\u201d\nWe are not unmindful that this court has recognized certain exceptions to this rule. See, Armijo v. Shambaugh, 64 N.M. 459, 330 P.2d 546; Ortiz v. Gonzales, 64 N.M. 445, 329 P.2d 1027; Heron v. Garcia, 48 N.M. 507, 153 P.2d 514; Flanagan v. Benvie, 58 N.M. 525, 273 P.2d 381.\nThe rule that an order sustaining a general motion to dismiss for failure to state grounds upon which relief can be granted will be affirmed if the decision was correct upon any legal ground is not applicable under the state of the record in this case.\nWe decline to pass upon the question presented for the first time on appeal, and express no opinion thereon.\nThe judgment will be affirmed insofar as it applies to the appellee, Phillips Petroleum Company, and reversed insofar as it applies to appellee, W. A. Starkovich, The cause will be remanded \u2022 with instructions-to vacate the judgment appealed from and to enter a new judgment in conformity with what we have said and to proceed further in a manner not inconsistent with the views expressed herein.\nIt is so ordered.\nCARMODY and CHAVEZ, JJ., concur.\nCOMPTON, C. J., and MOISE, J., not participating.", "type": "majority", "author": "NOBLE, Justice." } ], "attorneys": [ "Phillips, Dolan & Clear, Warren F. Reynolds, Albuquerque, for appellant.", "Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Joseph J. Mullins, Albuquerque, for appellees." ], "corrections": "", "head_matter": "369 P.2d 403\nSarah ROSEBERRY, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY and W. A. Starkovich, Defendants-Appellees.\nNo. 6956.\nSupreme Court of New Mexico.\nFeb. 28, 1962.\nPhillips, Dolan & Clear, Warren F. Reynolds, Albuquerque, for appellant.\nRodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Joseph J. Mullins, Albuquerque, for appellees." }, "file_name": "0019-01", "first_page_order": 51, "last_page_order": 56 }