{
  "id": 2861041,
  "name": "Marcella VILLEGAS, Plaintiff-Appellant, v. AMERICAN SMELTING AND REFINING COMPANY, INC., Defendant-Appellee",
  "name_abbreviation": "Villegas v. American Smelting & Refining Co.",
  "decision_date": "1976-07-27",
  "docket_number": "No. 2477",
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  "last_updated": "2023-07-14T20:56:52.908635+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "HENDLEY and SUTIN, JJ., concur."
    ],
    "parties": [
      "Marcella VILLEGAS, Plaintiff-Appellant, v. AMERICAN SMELTING AND REFINING COMPANY, INC., Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge\nProceeding under' \u00a7 59-10-13.5, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1, Supp.1975), plaintiff sought a lump-sum payment of workmen\u2019s compensation benefits. The trial court dismissed plaintiff\u2019s petition for failure to state a claim upon which relief could be granted. Plaintiff\u2019s appeal involves the effect of a motion to dismiss upon \u00a7 59-10-36, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1).\nSection 59-10-36, supra, provides that no claim for compensation shall be filed by any workman receiving maximum compensation benefits. Defendant pled this section as an affirmative defense in its answer. Subsequent to filing its answer, defendant moved to dismiss the petition. The motion relied on \u00a7 59-10-36, supra, and asserted: \u201cAs shown by Plaintiff\u2019s Petition, Defendant is making payments to claimant at the maximum rate. * * * \u201d The motion also relied upon certain unreported memorandum decisions of this Court. We decline to consider the applicability of the memorandum decisions to the facts of this case because they have not been officially reported and are unpublished. Section 16-7-13, N.M.S.A.1953 (Repl. Vol. 4).\nDefendant\u2019s answer made certain admissions adverse to defendant\u2019s contention that the petition failed to state a claim upon which relief could be granted. The trial court was concerned that the admissions in the answer would have the effect of waiving the motion to dismiss. The trial court proceeded on the basis that the motion to dismiss had not been waived and the admissions in the answer should not be considered in ruling on the motion to dismiss. This procedure raises various problems as to pleading in workmen\u2019s compensation cases. See Gutherie v. Threlkeld Co., 52 N.M. 93, 192 P.2d 307 (1948); Compare \u00a7 59-10-13.9, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). It is unnecessary to consider these problems. We proceed on the same basis as the trial court did; we consider that defendant moved to dismiss prior to filing an answer. Thus, we do not consider the admissions in defendant\u2019s answer.\nDefendant moved to dismiss under Civil Procedure \u2018Rule 12(b)(6). The motion is properly granted only when it appears that plaintiff cannot recover under any state of facts provable under the claim made by plaintiff. For purposes of the motion, the well-pleaded material allegations of the complaint, or petition, are taken as admitted. C & H Constr. & Pav., Inc. v. Foundation Reserve Ins. Co., 85 N. M. 374, 512 P.2d 947 (1973); Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963); Jernigan v. New Amsterdam Casualty Company 69 N.M. 336, 367 P.2d 519 (1961); First National Bank of Santa Fe v. Ruebush, 62 N.M. 42, 304 P.2d 569 (1956).\nUnder the above cases, defendant\u2019s motion to dismiss admitted all well-pleaded material allegations. What did the motion admit? It admitted that plaintiff\u2019s husband was accidentally killed in the course of his employment with defendant, that her husband had been earning in excess of $260.00 per week, that plaintiff was the widow of the deceased and they had a three-year-old child, and that defendant was paying compensation in installments to the plaintiff.\nDefendant\u2019s admissions established liability for the death of plaintiff\u2019s husband; the admissions suffficiently established plaintiff\u2019s right to compensation. Arther v. Western Company of North America, 88 N.M. 157, 538 P.2d 799 (Ct.App.1975). The right to compensation having been sufficiently established, \u00a7 59-10-36, supra, did not bar the petition which stated a claim for lump-sum compensation benefits.\nThe trial court erred in dismissing the petition for failure to state a claim upon which relief could be granted.\nOral argument is unnecessary. The trial court\u2019s order of dismissal is reversed. The cause is remanded for further proceedings consistent with this opinion. On the merits of plaintiff\u2019s petition see Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628 (Ct.App.1976) and cases therein cited.\nIT IS SO ORDERED.\nHENDLEY and SUTIN, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge"
      }
    ],
    "attorneys": [],
    "corrections": "",
    "head_matter": "552 P.2d 1235\nMarcella VILLEGAS, Plaintiff-Appellant, v. AMERICAN SMELTING AND REFINING COMPANY, INC., Defendant-Appellee.\nNo. 2477.\nCourt of Appeals of New Mexico.\nJuly 27, 1976."
  },
  "file_name": "0387-01",
  "first_page_order": 423,
  "last_page_order": 425
}