{ "id": 8501379, "name": "Pat H. MICHAEL, Plaintiff-Appellant, v. Joe BAUMAN, d/b/a Joe Bauman Texaco Service Station and Agricultural Insurance Company, Defendants-Appellees", "name_abbreviation": "Michael v. Bauman", "decision_date": "1966-05-02", "docket_number": "No. 7789", "first_page": "225", "last_page": "229", "citations": [ { "type": "official", "cite": "76 N.M. 225" }, { "type": "parallel", "cite": "413 P.2d 888" } ], "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": "67 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715469 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0156-01" ] }, { "cite": "34 N.M. 483", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556130 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/34/0483-01" ] }, { "cite": "65 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848176 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0450-01" ] }, { "cite": "73 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321994 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/73/0470-01" ] }, { "cite": "67 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714015 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/67/0459-01" ] }, { "cite": "60 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590407 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/60/0087-01" ] }, { "cite": "60 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590366 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/60/0101-01" ] }, { "cite": "53 N.M. 58", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580739 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/53/0058-01" ] }, { "cite": "68 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717645 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/68/0338-01" ] }, { "cite": "68 N.M. 239", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718113 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/68/0239-01" ] }, { "cite": "73 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322218 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/73/0050-01" ] }, { "cite": "51 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578148 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/51/0309-01" ] }, { "cite": "69 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791301 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0072-01" ] }, { "cite": "46 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563094 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0458-01" ] }, { "cite": "57 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841243 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/57/0040-01" ] }, { "cite": "73 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322022 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/73/0275-01" ] } ], "analysis": { "cardinality": 503, "char_count": 7760, "ocr_confidence": 0.644, "pagerank": { "raw": 4.0927639936032536e-07, "percentile": 0.9093088052623918 }, "sha256": "d1ab40a9e31dc48c8ed526311a38ba4a2ede2ddce3b5cb76d5bd3b1bc4a5ec02", "simhash": "1:97abc54623aa3777", "word_count": 1304 }, "last_updated": "2023-07-14T22:44:29.378515+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CARMODY, C. J., and NOBLE, J., concur." ], "parties": [ "Pat H. MICHAEL, Plaintiff-Appellant, v. Joe BAUMAN, d/b/a Joe Bauman Texaco Service Station and Agricultural Insurance Company, Defendants-Appellees." ], "opinions": [ { "text": "MOISE, Justice.\nPlaintiff, Pat H. Michael, appeals from a judgment denying his claim for workmen\u2019s compensation for a left inguinal hernia which he claims arose during the course of his employment on October 2, 1962.\nThe district court determined that plaintiff had suffered a left inguinal hernia in April of 1962 but that there was no proof that this injury arose out of plaintiff\u2019s employment, nor was written or oral notice of the injury\u2019s occurrence given to defendant employer within the prescribed time; that in April of 1962 plaintiff was advised that corrective treatment for the hernia was necessary; and, that the surgery which plaintiff underwent in October, 1962, was to \u25a0cure the condition which arose in April and that plaintiff had misrepresented the facts when he stated the injury was first noticed after an accident occurred during his employment by defendant on October 2, 1962. On the basis of these facts, recovery was denied.\nPlaintiff\u2019s sole point relied upon \u00edor reversal is that the court erred in adopting defendants\u2019 requested findings of fact and conclusions of law and in rejecting those .findings and conclusions requested by plaintiff. In support of this general claim he urges that the only testimony which could be taken as support for the findings of the district court is so confusing and contradictory as to be unbelievable; that defendant insurer\u2019s payments on the claim evidenced its acceptance thereof; that even if the injury were to have originated in April, rather than October, the statute of limitations could not bar the claim for plaintiff had no knowledge of the injury; and, that defendant employer is estopped to deny the claim for compensation because he did not have plaintiff examined physically prior to employment. We proceed to determine the validity of these contentions.\nAt the outset we note plaintiff\u2019s failure to comply with and apparent disregard of the rule of this court governing the preparation of briefs. Plaintiff\u2019s brief contains -a' section denominated '\u25a0\u2018\u2019Statement of the' Case\u201d which sets' out facts alleged by plaintiff to be true, but which conflict with the facts as found by the district court. His brief contains no section entitled \u201cStatement of facts.\u201d In this, he clearly violates the plain language of Supreme Court Rules 15(14) (2) and 15(14) (3) (\u00a7 21-2-1(15) (14) (2) and (3), N.M.S.A. 1953). Further, the. facts as stated are inconsistent with the trial court\u2019s findings. This constitutes a violation of the same rules as interpreted in numerous cases. See Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852; Provencio v. Price, 57 N.M. 40, 253 P.2d 582; Henderson v. Texas-New Mexico Pipeline Co., 46 N.M. 458, 131 P.2d 269. We note that plaintiff nowhere sets out the substance of all evidence bearing upon the findings of fact attacked,, as required by Supreme Court Rule 15(6) (\u00a7 21-2-1(15) (6), N.M.S.A.1953); Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134; Davies v. Rayburn, 51 N.M. 309, 183 P.2d 615. His attack on the findings is generalized and amounts to a statement that all of the court\u2019s findings and conclusions were wrong while all findings and conclusions proposed by plaintiff were correct. See Kerr v. Akard Brothers Trucking Company, 73 N.M. 50, 385 P.2d 570. He neither sets out in his brief his requested findings and conclusions, nor the claimed erroneous findings and conclusions of the district court. See Bogle v. Potter, 68 N.M. 239, 360 P.2d 650. All of these failings are in direct violation of the decisions of this court interpreting our rules governing the preparation of briefs. See Swallows v. Sierra, 68 N.M. 338, 362 P.2d 391. Accordingly, plaintiff not having properly attacked the facts found by the district court, those facts must remain as the basis upon which we determine the issues presented. See Bogle v. Potter, supra; Swallows v. Sierra, supra; Hugh K. Gale Post No. 2182 V. of F. W. v. Norris, 53 N.M. 58, 201 P.2d 777.\nThe conclusion that the trial court\u2019s findings are final disposes of plaintiff\u2019s first contention. We add that even had we not considered the findings made by the district court as being conclusive, we still find them amply supported in the record.\nPlaintiff complains that the insurer\u2019s payments on his claim for a six-week period after the alleged October accident precludes any denial of the validity of the present claim. It is true that we have recognized that payment of claims may constitute an admission against interest by the employer or insurer. Compare Gilbert v. E. B. Law and Son, Inc., 60 N.M. 101, 287 P.2d 992; Feldhut v. Latham, 60 N.M. 87, 287 P.2d 615. However, an admission can be rebutted or explained and is by no means conclusive. Compare Gallegos v. George A. Rutherford, Inc., 67 N.M. 459, 357 P.2d 50. Thus, the admission is only one factor to be considered together with the other evidence. 2 Jones on Evidence, \u00a7 397 (5th Ed. 1958). In the instant case the district court weighed the evidence in reaching its conclusion and, in so doing, did not violate any rule of law.\nPlaintiff next argues that the district court erred in finding that any valid claim which might have arisen from the April accident was barred by plaintiff\u2019s failure to give notice within the time prescribed by \u00a7 59-10-13.4, N.M.S.A.1953. He does not state that he gave notice but asserts that this failing is excused because he had no knowledge of the injury\u2019s occurrence in April. The district court found that, \u201c * * * During the month of April 1962, Plaintiff was advised by the treating physican (sic) that he had suffered a left direct inguinal hernia * * The failure to give notice within the allotted time is a conclusive bar to any suit for compensation based upon the April injury. Wilson v. Navajo Freight Lines, Inc., 73 N.M. 470, 389 P.2d 594; Yardman v. Cooper, 65 N.M. 450, 339 P.2d 473.\nThus we are brought to plaintiff\u2019s final contention wherein he asserts that the failure of his employer to cause him to be examined physically prior to assumption of employment precludes a denial of compensation. He relies on \u00a7 59-10-18.6, N.M.S.A. 1953. This section places a strict burden of proof on one seeking compensation for a hernia because, from the nature of the ailment, \u201cit offered an easy means of imposition and fraud.\u201d See Martin v. White Pine Lumber Co., et al., 34 N.M. 483, 284 P. 115; Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680. But, if, as in the instant case, the employer does not show that he caused the workman to be physically examined prior to employment to determine the possible existence of a hernia, the employee is relieved from proving certain facts specified in the section. There, then, remains only the normal burden of proof to be met by plaintiffs in all workmen\u2019s compensation cases set out in \u00a7 59-10-13.3, N.M.S.A.1953. It is this burden which the district court found that plaintiff failed to meet when it stated that, \u201cPlaintiff has failed to sustain his burden of proving that the left inquinal hernia which he now has, and the disability resulting therefrom, if any, as a medical probability, were a natural and direct result of the alleged accident on October 2, 1962.\u201d Plaintiff was not forced to meet the burden of proving certain facts as required under \u00a7 59-10-18.6, supra, but only those required by \u00a7 59 \u2014 10\u2014 13.3, supra.\nThe judgment appealed from is affirmed. It is so ordered.\nCARMODY, C. J., and NOBLE, J., concur.", "type": "majority", "author": "MOISE, Justice." } ], "attorneys": [ "William W. Osborn, Roswell, for appellant.", "Atwood & Malone, Bob F. Turner, Roswell, for appellees." ], "corrections": "", "head_matter": "413 P.2d 888\nPat H. MICHAEL, Plaintiff-Appellant, v. Joe BAUMAN, d/b/a Joe Bauman Texaco Service Station and Agricultural Insurance Company, Defendants-Appellees.\nNo. 7789.\nSupreme Court of New Mexico.\nMay 2, 1966.\nWilliam W. Osborn, Roswell, for appellant.\nAtwood & Malone, Bob F. Turner, Roswell, for appellees." }, "file_name": "0225-01", "first_page_order": 257, "last_page_order": 261 }