{
  "id": 5362583,
  "name": "Bernard C. McCLESKEY, Plaintiff-Appellant, v. N. C. RIBBLE COMPANY, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees",
  "name_abbreviation": "McCleskey v. N. C. Ribble Co.",
  "decision_date": "1969-04-25",
  "docket_number": "No. 271",
  "first_page": "345",
  "last_page": "347",
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  "analysis": {
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  "last_updated": "2023-07-14T15:41:23.226975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and HENDLEY, J., concur."
    ],
    "parties": [
      "Bernard C. McCLESKEY, Plaintiff-Appellant, v. N. C. RIBBLE COMPANY, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Judge.\nAwarded workmen\u2019s compensation for a 20% partial permanent disability, plaintiff appeals. He contends the finding of partial disability is insufficient to support the conclusion of law on which the award is based. Conclusions of law must be supported by the findings of fact. Goldie v. Yaker, 78 N.M. 485, 432 P.2d 841 (1967).\nThe asserted insufficiency of the finding is based on the definition of partial disability in \u00a7 59-10-12.19, N.M.S.A.1953 (Repl. Vol. 9, pt. 1, Supp.1967). Plaintiff contends this section states a two part requirement for partial disability. He claims the workman must be unable, to some percentage extent\u2014(1) to perform the usual tasks in the work he was performing when injured and (2) to perform any work for which he is fitted by age, education, training, physical and mental capacity and experience.\nThe trial court made no finding concerning the asserted first requirement (inability to perform the usual tasks in the work performed when injured). The trial court did make findings concerning the asserted second requirement (inability to perform work for which plaintiff is fitted). Because of the lack of a finding as to the asserted \u25a0first requirement, plaintiff claims the trial court has failed to find a \u201cmaterial fact\u201d. On this basis, plaintiff contends the trial' court\u2019s conclusion of law is not supported by findings of fact.\n. \u201cThe findings of fact shall consist only of such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them * * Section 21\u20141\u20141(52) (B) (a) (2), N.M.S.A.1953. \u201cUltimate facts\u201d are the essential and determinative facts on which the conclusion is reached. Goldie v. Yaker, supra. The findings are not required to cover every material fact, only the ultimate facts. The issue is not whether the trial court failed to find a material fact; the issue is whether it failed to find an ultimate fact.\nWe assume \u00a7 59-10-12.19, supra, states a two part requirement for partial disability. Compare Ortega v. New Mexico State Highway Dep\u2019t, 77 N.M. 185, 420 P.2d 771 (1966); Cordova v. Union Baking Co., (Ct.App.), 80 N.M. 241, 453 P.2d 761, decided April 11, 1969. Are these two parts ultimate facts or evidentiary facts ?\nFor there to be a workmen\u2019s compensation award, there must be a disability. See \u00a7 59-10-13.3, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). The compensation payable is measured in terms of disability. Sections 59-10-18.2 and 59-10-18.3, N.M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1967). Disability, expressed in a percentage amount, is an ultimate fact. Thus, a finding that a workman, to a stated percentage extent, is partially and permanently disabled is a finding of an ultimate fact. Compare Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546 (1966); Brundage v. K. L. House Construction Co., 74 N.M. 613, 396 P.2d 731 (1964).\nAssuming there are two parts to the definition of partial disability, those two parts state the proof required to support a finding as to the ultimate fact of partial disability. Findings as to these two \u25a0parts would be findings as t\u00f3' evidentiaryfacts. The trial court\u2019s finding concerning plaintiff\u2019s ability to p\u00e9rform work for which he is fitted was a finding as to an \u25a0evidentiary fact and was unnecessary. Section 21-1-1(52) (B) (a) (2), supra. The failure of the trial court to find concerning plaintiff\u2019s ability to perform the usual tasks of the work performed when injured was not a failure to find an ultimate fact.\nThe trial court found \u201c* * * at the present time he [plaintiff] has a 20 per cent partial permanent disability. * * *\u201d Because of the word \u201cpresent\u201d, plaintiff \u2022contends this was another finding as to his \u25a0ability to perform work for which he is fitted. This is incorrect. The use of '\u201cpresent\u201d in the finding means plaintiffs disability was in existence at the time of trial. Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App., 1968). The trial court\u2019s finding that plaintiff had a presently existing 20% partial permanent disability is a finding of ultimate fact. This ultimate fact supports the conclusion of law and resultant award.\nPlaintiff contends the trial court, \u2022erred in refusing his requested finding concerning the asserted two parts to' the \u2022definition of partial disability. For two reasons, refusal of the request was not error. 1. The request asked the court to find evidentiary facts; findings as to evidentiary facts are not required. 2. The request asked the court to find a percentage of disability contrary to the 20% amount found. The trial court\u2019s finding is supported by substantial evidence as to each of the two asserted parts of partial disability. It was not error to refuse a contrary finding. Dodson v. Eidal Manufacturing Co., 72 N.M. 6, 380 P.2d 16 (1963).\nThe judgment is affirmed.\nIt is so ordered.\nSPIESS, C. J., and HENDLEY, J., concur.",
        "type": "majority",
        "author": "WOOD, Judge."
      }
    ],
    "attorneys": [
      "James C. Ritchie, John P. Salazar, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellant.",
      "James A. Parker, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "455 P.2d 849\nBernard C. McCLESKEY, Plaintiff-Appellant, v. N. C. RIBBLE COMPANY, Employer, and Mountain States Mutual Casualty Company, Insurer, Defendants-Appellees.\nNo. 271.\nCourt of Appeals of New Mexico.\nApril 25, 1969.\nRehearing Denied May 21, 1969.\nCertiorari Denied June 13, 1969.\nJames C. Ritchie, John P. Salazar, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellant.\nJames A. Parker, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellees."
  },
  "file_name": "0345-01",
  "first_page_order": 401,
  "last_page_order": 403
}