{ "id": 5328148, "name": "Steven J. MAYNERICH, Jr., a minor by and through Steven J. Maynerich, his father and next of friend, and Steven J. Maynerich, individually, Plaintiffs-Appellants, v. LITTLE BEAR ENTERPRISES, INC., a corporation, Milton Black and Eilis Hamblin, Defendants-Appellees", "name_abbreviation": "Maynerich ex rel. Maynerich v. Little Bear Enterprises, Inc.", "decision_date": "1971-05-21", "docket_number": "No. 578", "first_page": "650", "last_page": "652", "citations": [ { "type": "official", "cite": "82 N.M. 650" }, { "type": "parallel", "cite": "485 P.2d 984" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "52 N.M. 68", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579524 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0068-01" ] }, { "cite": "62 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2713761 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0120-01" ] }, { "cite": "242 N.W. 655", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1932, "opinion_index": 0 }, { "cite": "123 Neb. 304", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2376599 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/neb/123/0304-01" ] }, { "cite": "49 N.M. 356", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841907 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/nm/49/0356-01" ] }, { "cite": "142 A.L.R. 1018", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "14 A.L.R. 818", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "354 S.W.2d 593", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10167625 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/sw2d/354/0593-01" ] }, { "cite": "210 Tenn. 144", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8528360 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/tenn/210/0144-01" ] }, { "cite": "268 S.W. 361", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 0 }, { "cite": "167 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1377062 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ark/167/0364-01" ] }, { "cite": "175 Kan. 395", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 50567 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/kan/175/0395-01" ] }, { "cite": "14 A.L.R. 812", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1918, "opinion_index": 0 }, { "cite": "120 N.E. 229", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1918, "opinion_index": 0 }, { "cite": "98 Ohio St. 61", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 957719 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ohio-st/98/0061-01" ] }, { "cite": "56 N.M. 724", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584694 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0724-01" ] }, { "cite": "78 N.M. 781", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321842 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0781-01" ] }, { "cite": "77 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802665 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0543-01" ] } ], "analysis": { "cardinality": 529, "char_count": 7026, "ocr_confidence": 0.676, "pagerank": { "raw": 1.2919448486230487e-07, "percentile": 0.6200098924686342 }, "sha256": "4430b11e263f56a7baa0a545367a26ed56b9783a7808774dfc430afbcd026e25", "simhash": "1:9678ae2f890ea772", "word_count": 1156 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and HENDLEY, JJ\u201e concur." ], "parties": [ "Steven J. MAYNERICH, Jr., a minor by and through Steven J. Maynerich, his father and next of friend, and Steven J. Maynerich, individually, Plaintiffs-Appellants, v. LITTLE BEAR ENTERPRISES, INC., a corporation, Milton Black and Eilis Hamblin, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSP\u00cdESS, Chief Judge.\nThe principal question presented upon this appeal is whether the Workmen\u2019s Compensation Act, \u00a7 59-10-1 et seq., N. M.S.A.1953 (Rpl. Vol. 9, pt. 1) precludes an illegally employed minor from maintaining a common law action against the employer' seeking damages for injuries based upon negligence. The appeal is from a summary judgment in favor of the employer.\nFacts before the court upon consideration of the motion for summary judgment are as follows: Steven J. Maynerich, a minor,' fifteen years of age, was employed by Little Bear Enterprises, Inc., (the employer). Plis duties included waiting on customers in the hardware and feed departments, and performing such, other tasks as were required of him. Steven was called upon from time to time to participate in the operation of a machine known as a fork lift. The fork lift was used in moving heavy objects, loading and unloading trucks. During the afternoon of July 26th, Steven was assisting in unloading hay from a truck and was directed to .\u2019climb upon the fork lift to designate the placement of bales of hay after they had' been unloaded from the truck. To avoid \u00e1 fall from the machine Steven placed his right hand on or within certain working1 parts of the lift resulting in the amputation of three of his fingers and injury to the remainiiig fingers. At the time of injury Steven was fifteen years of age.\nFor the purpose of the motion for summary judgment, Steven\u2019s work witW'alnd upon the fork lift was treated as an -employment \u201c* * * dangerous to - lives and limbs, * * *\u201d \u25a0\nThe Child Labor Law, \u00a7 59-6-5, N.M.S. A.1953 (Rpl. Vol. 9, pt. 1) provides \u00cd\n\u201cNo child under the age of sixteen (16) years shall be employed or permitted to labor at any of the following occupations or in any one of the following positions: * * * nor in any employment dangerous to lives and limbs, * * *\u201d '\nAs we have indicated, the trial cburt, in rendering summary judgment, assumed this case to be controlled by the Workmen\u2019s Compensation Act to the end that Steven was barred from maintaining a common law action, and was limited to the remedies provided by the Workmen\u2019s Compensation Act. (\u00a7 59-10-6, N.M.S.A. 1953\u2019 (Rpl.' Vol. 9, pt. 1). ' :\nThe Workmen\u2019s Compensation Act is based upon an employer-employee relationship. Perea v. Board of Torrance County Commissioners, 77 N.M. 543, 425 P.2d 308 (1967). The Act, (\u00a7 59-10-12.9; N.M.S.A.1953 (Rpl. Vol. 9, pt. 1, 1969 Supp.) defines workman as follows:\n\u201cWorkman. \u2014 rAs used in the Workmen\u2019s Compensation Act [59-10-1 to .59-1.0-37], unless the context' otherwise requires, \u2018workman\u2019 means any \u00a1person who has entered into the employment of or works under contract of service or apprenticeship, with an employer, except a person whose employment is p\u00fcrely casual and not for the purpose of the employer\u2019s trade or business. The term \u2018workman\u2019 shall include \u2018employee\u2019 and shall include the singular and plural of both sex.\u201d\nIt is clear from this definition that employer-employee relationship, to which the Act applies, is one created by contract between the parties; consequently, if the employer in this case seeks to avail itself of the Workmen\u2019s Compensation Act as a bar to a common law action, then it must show a valid contract of employment between it and Steven.\nIn our opinion, a contract, the performance of which violates a penal statute, is illegal and at least voidable, and will not provide a basis for the assertion of rights under such contract, particularly by the party upon whom the statute imposes the penalty. See Measday v. Sweazea, 78 N.M. 781, 438 P.2d 525 (Ct.App.1968); Farrar v. Hood, 56 N.M. 724, 249 P.2d 759 (1952); Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N.E. 229, 14 A.L.R. 812 (1918); also 6A Corbin, Contracts, \u00a7 1540.\nThe extension of coverage under Workmen\u2019s Compensation Acts to illegally employed minors is now generally provided by specific statutory provisions. See 1A Larson, Workmen\u2019s Comp., Sec. 47.52(a), page 789. Cases employing these statutes as a basis for barring a common law remedy to an illegally employed minor are of no assistance here. Our Act, by its terms contains no specific language bringing illegally employed minors within its terms.\nIn our view, the weight of authority, as applied to statutes similar to ours, supports the proposition that an illegally employed minor may pursue a common law action. Hadley v. Security Elevator Co., 175 Kan. 395, 264 P.2d 1076 (1953); Cox Cash Stores v. Allen, 167 Ark. 364, 268 S.W. 361 (1925); Pigg v. Stacey, 210 Tenn. 144, 354 S.W.2d 593 (1962). See also authorities cited Annot. 14 A.L.R. 818; 142 A.L.R. 1018.\nNothing in Benson v. Export Equipment Corporation, 49 N.M. 356, 164 P.2d 380 (1945), is contrary to the conclusions here expressed because in Benson the minor was not illegally employed at the time the injury was sustained.\nWe hold that Steven is not barred by the Workmen\u2019s Compensation Act from maintaining a common law action, and that the trial court erred in denying him such remedy.\nWe have carefully considered authorities cited by employer. They do not, however, in our opinion, compel a conclusion different from that herein expressed.\nEmployer contends that Steven waived any rights he may have had to pursue a common law action because he accepted workmen\u2019s compensation benefits. The record does show that Steven received certain checks (which he cashed) issued by an insurance company. He testified, in substance, that he did not know that the checks were payments under the Workmen\u2019s Compensation Act.\nIt is fundamental that both waiver and estoppel require knowledge of the facts by the person against whom they are asserted. First Nat. Bank of Hastings v. Davis, 123 Neb. 304, 242 N.W. 655 (1932).\nIn Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067 (1957), the court, in discussing the question of estoppel by acceptance of benefits, said:\n\u201cIn order to create estoppel by acceptance of benefits it is essential that the person against whom estoppel is claimed, should have acted with full knowledge of the facts and of his rights, * * * \u201d\nSee Miller v. Phoenix Assur. Co. Limited, of London, 52 N.M. 68, 191 P.2d 993 (1948).\nIn view of the fact issue presented by the record with respect to the claim of waiver this matter is not properly subject to summary judgment.\nReversed with direction to vacate the summary judgment and proceed in a manner not inconsistent herewith.\nIt is so ordered.\nWOOD and HENDLEY, JJ\u201e concur.", "type": "majority", "author": "SP\u00cdESS, Chief Judge." } ], "attorneys": [ "Richard B. Cole, Civerolo, Hansen & Wolf, Albuquerque, for plaintiffs-appellants.. - \u25a0", "Charles - B. Larrabee, John P. Salazar, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "485 P.2d 984\nSteven J. MAYNERICH, Jr., a minor by and through Steven J. Maynerich, his father and next of friend, and Steven J. Maynerich, individually, Plaintiffs-Appellants, v. LITTLE BEAR ENTERPRISES, INC., a corporation, Milton Black and Eilis Hamblin, Defendants-Appellees.\nNo. 578.\nCourt of Appeals of New Mexico.\nMay 21, 1971.\nRichard B. Cole, Civerolo, Hansen & Wolf, Albuquerque, for plaintiffs-appellants.. - \u25a0\nCharles - B. Larrabee, John P. Salazar, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees." }, "file_name": "0650-01", "first_page_order": 706, "last_page_order": 708 }