{
  "id": 2852865,
  "name": "Bill RONE, Plaintiff-Appellee and Cross-Appellant, v. CALVARY BAPTIST CHURCH, INC., a corporation, Employer, and the Western Casualty and Surety Company, a corporation, Insurer, Defendants-Appellants and Cross-Appellees",
  "name_abbreviation": "Rone v. Calvary Baptist Church, Inc.",
  "decision_date": "1962-09-14",
  "docket_number": "No. 7117",
  "first_page": "465",
  "last_page": "468",
  "citations": [
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      "cite": "70 N.M. 465"
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    {
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      "cite": "374 P.2d 847"
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  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
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      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "57 N.M. 525",
      "category": "reporters:state",
      "reporter": "N.M.",
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        8842338
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      "weight": 2,
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  "last_updated": "2023-07-14T21:50:52.194101+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "COMPTON, C. J., and CARMODY, J., concur.",
      "CHAVEZ and MOISE, JJ., not participating.",
      "CPIAVEZ and MOISE, JJ., not participating."
    ],
    "parties": [
      "Bill RONE, Plaintiff-Appellee and Cross-Appellant, v. CALVARY BAPTIST CHURCH, INC., a corporation, Employer, and the Western Casualty and Surety Company, a corporation, Insurer, Defendants-Appellants and Cross-Appellees."
    ],
    "opinions": [
      {
        "text": "NOBLE, Justice.\nThis appeal is from a judgment awarding claimant, Rone, workmen\u2019s compensation benefits amounting to $4.75 per week for partial permanent disability.\nThe court found the following facts:\n\u201c1. This Court has jurisdiction of the parties and of the subject matter of this action.\n\u201c2. That on or about January 20, 1960, Plaintiff was working as a carpenter in the employ of the Defendant Calvary Baptist Church, Inc., and while so employed sustained an injury by accident arising out of and in the course of his said employment. That at the time of the injury, the alleged weekly earnings of the plaintiff were $130.00 per week. That at the time of said injury, the Defendant, The Western Casualty & Surety Company, a corporation, was insurer of the Defendant employer for Workmen\u2019s Compensation Coverage.\n\u201c3. That following the said injury, the Defendants paid temporary compensation to the Plaintiff in the sum of $38.00 per week from the date of said injury to and including July 17, 1960.\n\u201c4. That as a natural and direct result of the said injury, plaintiff has sustained a partial disability in that his wage earning ability was decreased to the extent that since July 17, 1960, the plaintiff has not been able to earn and is not now able to earn in any employment more than the sum of $113.75 per week. The percentage of partial disability under the rule stated in Sec. 59-10-18.3, N.M.S.A., 1953, which plaintiff now suffers [is] .125.\n\u201c5. Plaintiff is entitled to receive for his partial disability during the time such disability shall continue, but in no event longer than 500 weeks, the sum of $4.75 per week, this being 12.5% of the benefit payable for total disability, $38.-00 per week.\n\u201c6. The plaintiff was forced to employ attorneys to represent him in this action, and a reasonable attorneys fee for plaintiff\u2019s attorney is the sum of $750.00.\u201d\nWe shall refer to the parties as they appeared in the trial court. Defendants rely on a single point for reversal which they state thus:\n\u201cThe trial court erred in finding that there had been a reduction in the claimant\u2019s wage earning ability since July 17, 1960, and in awarding the claimant compensation benefits in the sum of $4.75 per week under the New Mexico Workmen\u2019s Compensation Act.\u201d\nAs we understand defendants\u2019 argument, it is that claimant\u2019s post-injury earnings equalled or exceeded his pre-injury earnings and that he is not entitled to any compensation. Defendants refer to certain testimony as to claimant\u2019s earnings at various times, both before and after the injury; but neither by the point relied on for reversal nor in their brief do defendants directly attack any of the findings of the trial court as not supported by substantial evidence. It is suggested that the evidence would have supported a finding of a smaller average weekly wage prior to the accident, but defendants do not point to any certain pre-injury average weekly wage less than that found by the court which is claimed to have been established by undisputed evidenc\u00e9. The same may be said of the argument regarding the post-injury earnings.\nAn examination of the record discloses that defendants requested no finding as to claimant\u2019s post-injury earnings and only that his earnings at the time of the injury exceeded $60.00 per week. No objection was made to any finding by the trial court, and under the long-established rule in this jurisdiction, -findings of the court, not attacked here, are the facts .upon which the case must rest on appeal and are binding on this court. Emmco Ins. Co. v. Walker, 57 N.M. 525, 260 P.2d 712; In re Cox\u2019 Estate, 57 N.M. 543, 260 P.2d 909. This rule applies to findings made by the court in a workmen\u2019s compensation case, La Rue v. Johnson, 47 N.M. 260, 141 P.2d 321; and the defendant cannot complain on appeal of the findings made by the court. Rule 52(b) (6) of the Rules of Civil Procedure; Teaver v. Miller, 53 N.M. 345, 208 P.2d 156.\nClaimant has cross-appealed on the sole ground that the trial court improperly computed the benefits to which claimant is entitled under the workmen\u2019s compensation statute, but does not argue the question except to refer us to a prior argument in his answer brief. If we correctly understand claimant\u2019s position regarding his cross-appeal, it would require an attack on the sufficiency of the evidence to support the findings as to average weekly wage earned by claimant both before and after the accident. The findings are not directly attacked and, therefore, will not be reviewed on appeal.\nThe judgment appealed from should be affirmed.\nIT IS SO ORDERED.\nCOMPTON, C. J., and CARMODY, J., concur.\nCHAVEZ and MOISE, JJ., not participating.\nSUPPLEMENTAL OPINION\nPER CURIAM.\nAttention has been called to our failure to determine whether attorneys fees should be allowed claimant\u2019s attorney on appeal. No motion for allowance of attorneys fees was filed. The request appears at the conclusion of claimant\u2019s brief and was overlooked by us. In view of the fact that the judgment of the trial court awarding claimant compensation was affirmed, attorneys fees are awarded claimant for the benefit of his attorney on appeal in the sum of $750.00.\nIT IS SO ORDERED.\nCPIAVEZ and MOISE, JJ., not participating.",
        "type": "majority",
        "author": "NOBLE, Justice. PER CURIAM."
      }
    ],
    "attorneys": [
      "Atwood & Malone, Paul Cooter, Roswell, for appellants and cross-appellees.",
      "Bean & Snead, Roswell, for appellee and cross-appellant."
    ],
    "corrections": "",
    "head_matter": "374 P.2d 847\nBill RONE, Plaintiff-Appellee and Cross-Appellant, v. CALVARY BAPTIST CHURCH, INC., a corporation, Employer, and the Western Casualty and Surety Company, a corporation, Insurer, Defendants-Appellants and Cross-Appellees.\nNo. 7117.\nSupreme Court of New Mexico.\nSept. 14, 1962.\nSupplemental Opinion Sept. 19, 1962.\nAtwood & Malone, Paul Cooter, Roswell, for appellants and cross-appellees.\nBean & Snead, Roswell, for appellee and cross-appellant."
  },
  "file_name": "0465-01",
  "first_page_order": 497,
  "last_page_order": 500
}