VILLEGAS V. AMERICAN SMELTING & REF. CO., 1976-NMCA-068, 89 N.M. 387, 552 P.2d
1235 (Ct. App. 1976)
Marcella VILLEGAS, Plaintiff-Appellant,
vs.
AMERICAN SMELTING AND REFINING COMPANY, INC.,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1976-NMCA-068, 89 N.M. 387, 552 P.2d 1235
William S. Martin, Jr., M. E. (Gene)
Miller, Silver City, for appellant.
Ben Shantz, Shantz, Dickson & Young,
Silver City, for appellee.
WOOD, C.J., wrote the opinion. HENDLEY and
SUTIN, JJ., concur.
{*388} WOOD, Chief
Judge.
{1} Proceeding under §
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's compensation benefits. The trial court
dismissed plaintiff's petition for failure to state a claim upon which relief
could be granted. Plaintiff's appeal involves the effect of a motion to dismiss
upon § 59-10-36, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1).
{2} Section 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 § 59-10-36, supra, and asserted:
"As shown by Plaintiff's Petition, Defendant is making payments to
claimant at the maximum rate. * * *" 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they have not been officially reported and are unpublished.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).
{3} Defendant's answer made
certain admissions adverse to defendant's 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's compensation cases. See
Gutherie v.
Threlkeld Co.,
52 N.M. 93,
192 P.2d 307 (1948); Compare § 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's answer.
{4} Defendant moved to
dismiss under Civil Procedure Rule 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).
{5} Under the above cases,
defendant's motion to dismiss admitted all well-pleaded material allegations.
What did the motion admit? It admitted that plaintiff's 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
{*389} was paying compensation in installments
to the plaintiff.
{6} Defendant's admissions
established liability for the death of plaintiff's husband; the admissions
sufficiently established plaintiff's 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, § 59-10-36,
supra, did not bar the petition which stated a claim for lump-sum compensation
benefits.
{7} The trial court erred in
dismissing the petition for failure to state a claim upon which relief could be
granted.
{8} Oral argument is unnecessary.
The trial court's order of dismissal is reversed. The cause is remanded for
further proceedings consistent with this opinion. On the merits of plaintiff's
petition see
Codling v. Aztec Well Servicing Co.,
89 N.M. 213,
549 P.2d
628 (Ct. App.1976) and cases therein cited.
HENDLEY and SUTIN, JJ., concur.