LASATER V. HOME OIL CO., 1972-NMCA-031,
83 N.M. 567, 494 P.2d 980 (Ct. App. 1972)
CASE HISTORY ALERT: affected by
1975-NMSC-018
BARNEY LASATER, Claimant-Appellee,
vs.
HOME OIL COMPANY, INC., Employer and PAN-AMERICAN FIRE
&
CASUALTY INSURANCE COMPANY, Insurer,
Defendants-Appellants
COURT OF APPEALS OF NEW MEXICO
1972-NMCA-031, 83 N.M. 567, 494 P.2d 980
Appeal from the District Court of Santa
Fe County, Campos, Judge
THOMAS B. CATRON III, CATRON, CATRON
& DONNELLY, Santa F. New Mexico, Attorneys for Appellants.
JAMES E. THOMSON, ZINN & DONNELL,
Santa Fe. New Mexico, Attorneys for Appellee.
COWAN, Judge, wrote the opinion.
Joe. W. Wood, C.J., William R. Hendley, J.
{1} Upon consideration of
appellants' motion for rehearing, the original opinion heretofore filed is
withdrawn and the following substituted therefor.
{2} The defendants appeal in
this workmen's compensation case from a judgment granting the plaintiff
compensation benefits, medical expenses and attorneys' fees.
{3} The issues are the status
of the plaintiff as independent contractor or employee and the limitation
provisions of the Workmen's Compensation Act. We affirm that part of the
judgment granting medical expenses. We reverse that part of the judgment
granting compensation benefits and attorneys' fees.
{4} On December 18, 1967,
plaintiff, Barney Lasater, aged 47 and residing near Santa Fe, New Mexico, was
called by Henry Houston, superintendent for defendant Home Oil Company, Inc.,
to go to one of defendant Home Oil's filling stations in the south part of
Santa Fe to clean out a sewer line. While climbing a ladder to check a vent
pipe, he fell and was injured.
{5} The plaintiff had been
doing odd jobs and performing part-time labor for defendant Home Oil since
1961. For several years he had had an agreement with Mr. Warren, president of
Home Oil, that "* * * any of his men call me to go do the work, go do it
and I would be paid for it." He was paid at the rate of $2.00 per hour
and, if he needed to rent tools or other equipment for a particular job, he
would pay the rental and be reimbursed by Home Oil for "any expenses I
incur by working." At times Home Oil would deduct social security,
withholding taxes and other deductions from his wages, which he would receive
after billing for his hours of labor and expenses.
{6} During the several months
prior to the accident the plaintiff had, for Home Oil, spent three days in Taos
on a gasoline tank installation job, done some mechanical work on trucks,
hauled gasoline, worked at different stations in town, installed tanks and
pumps in a new station at Rivera, set a pump at a station on the Las Vegas highway,
torn down an advertising sign at a gasoline station, and prepared a transport
tank for moving from storage.
{7} After the accident Mr.
Warren wrote the plaintiff two letters. The first, dated December 28, 1967,
mentioned the accident,
{*569} contained
the information that he had turned in the plaintiff's claim to Home Oil's
insurance company and asked the claimant for his hospital and doctor bills, as
he was "trying to get something" for the plaintiff. The second
letter, postmarked February 1, 1968, discussed the Taos job and contained this
language:
"* * * I tur n [sic] [turn] in insurance on you for you
had worked for me so much the [sic] have questioned me a lot on it they say
there shou,d [sic] [should] be some way getting insurance for you were working
at my place * * *."
{8} After the plaintiff
entered the hospital on the day of the accident, Mr. Houston called on him and
discussed the matter of the plaintiff's expenses and claims. Mr. Houston told
him that "the bills would be taken care of." Compare Feldhut v.
Latham,
60 N.M. 87,
287 P.2d 615 (1955).
{9} The trial court found
that the plaintiff was an employee of defendant Home Oil Company, Inc. at the
time of the accident. The defendants, by their first point, question the
sufficiency of the evidence to support this finding, asserting that the
evidence shows the plaintiff to have been an independent contractor.
{10} A case of this type must
stand upon its own particular facts and circumstances. Although there are
several New Mexico decisions on the employee v. independent contractor status,
none of these decisions are sufficiently similar on the facts to be
specifically controlling in this case. In Mendoza v. Gallup Southwestern Coal
Co.,
41 N.M. 161,
66 P.2d 426 (1937), the Supreme Court stated:
"The words 'employer and employee' as used in the New
Mexico Workmen's Compensation Act are used in their natural sense and intended
to describe the conventional relation between an employer who pays wages to an
employee for his labor * * *."
{11} The payment of $2.00 an
hour for labor, together with the other facts, raised a factual issue as to
whether plaintiff's status was that of an employee. See Mittag v. Gulf Refining
Company,
64 N.M. 38,
323 P.2d 292 (1958). Viewing the evidence in the light most
favorable to support the finding of employment, which we are required to do,
the evidence substantially supports the finding.
{12} By their second point,
defendants argue that the plaintiff's claim was barred because it was not
timely filed. The court found that the claim was not filed within one year and
31 days after the accident. The plaintiff seeks to excuse the late filing on
the ground that the failure to file within the prescribed period was caused by
conduct on the part of the employer which reasonably led him to believe that
compensation would be paid. He contends that the Warren letter of February 1,
1968, was such conduct.
{13} Section 59-10-13.6(A),
N.M.S.A. 1953 (Repl. Vol. 9, pt. 1), in effect at the time of the accident,
provided:
"* * * [I]t is the duty of the workman, insisting on the
payment of compensation, to file a claim therefor as provided in the Workmen's
Compensation Act, not later than one (1) year after the failure or refusal of
the employer or insurer to pay compensation."
{14} Section 59-10-14,
N.M.S.A. 1953 (Repl. Vol. 9, pt. 1), states:
"The failure of any person entitled to compensation * *
* to * * * file any claim, or bring suit within the time fixed by the Workmen's
Compensation Act shall not deprive such person of the right to compensation
where the failure was caused in whole or in part by the conduct of the employer
or insurer which reasonably led the person entitled to compensation to believe
the compensation would be paid."
{15} This provision for
extending the time within which suit must be filed was first enacted by the
legislature in 1937, using the words "which
would reasonably lead
the person." By amendment in 1959 the quoted words were substituted by the
words "which
reasonably led the person". [Emphasis added]
Given a rational construction
{*570} the
statute requires not only that a claimant
be led to believe that
compensation would be paid but this belief must cause him to delay the filing
beyond the statutory period. Some mental reaction must be evidenced. See
dissenting opinion in Reed v. Fish Engineering Corporation,
76 N.M. 760,
418
P.2d 537 (1966).
{16} The trial court found:
"The failure to file claimant-employee's complaint
within one year and 31 days from the disability was caused in whole or in part
by the conduct of the employer of February 1, 1968 which reasonably led the
claimant-employee to believe that compensation would be paid."
{17} There being no evidence
in the record that the plaintiff was in any way led to believe that
compensation benefits would be paid, this finding was in error. The letter of
February 1, 1968, relied on by plaintiff, makes no mention of compensation
benefits, as distinguished from medical or hospital expenses, nor does the
testimony of the plaintiff himself indicate that he withheld filing his claim,
in whole or in part, because of conduct on the part of his employer.
{18} However, the late filing
has no affect upon plaintiff's medical expenses, found by the court to be in
the sum of $1,029.77, since the limitation provision of § 59-10-13.6(A), supra,
does not apply to them. Nasci v. Frank Paxton Lumber Co.,
69 N.M. 412,
367 P.2d
913 (1961). The trial court's awarding the plaintiff his medical expenses was
not error.
{19} The cause is remanded
with instructions to enter judgment for the plaintiff in accordance herewith.
Recovery of compensation being a prerequisite to the allowance of attorneys'
fees, the plaintiff is not entitled to an award for attorneys' fees here or in
the trial court. Cromer v. J. W. Jones Construction Company,
79 N.M. 179,
441
P.2d 219 (Ct. App. 1968).
Joe W. Wood, C.J., William R. Hendley, J.