Gonzales v. Sharp & Fellows Contracting Co. , 51 N.M. 121 ( 1947 )

This is a second appeal of this workman's compensation case. See Gonzales v. Sharp Fellows Contracting Co., 48 N.M. 528,153 P.2d 676. The facts, which are not controverted, are as follows:

On July 10, 1939 Cayetano L. Gonzales while working for the Sharp Fellows Contracting Co., (hereinafter styled appellant) suffered an accidental injury arising out of and in the course of his employment. As a result of this injury he immediately became totally disabled, and so continued until the time of his death (a result of the injury) on July 8, 1943. Because of this injury the deceased, prior to his death, was awarded compensation for 550 weeks at $18 per week. Had he lived payments would have continued until February 8, 1950. He had received compensation for 207 weeks at the time of his death, and there remained 343 weeks before his weekly compensation would have ended, had he lived.

The deceased was survived by his wife (appellee herein), and four children, all under the age of 18 years; all of whom were dependent solely upon deceased for support. This proceeding was filed in the district court within one year after the death of Gonzales.

The parties agreed: "That the sole issues in this cause were whether or not the plaintiff was entitled to recover the unpaid portion of the 550 weeks' compensation which said Cayetano L. Gonzales would have been entitled to receive if he had continued to live, and what allowance, if any, should be made as attorney's fees."

The question then is whether the facts stated support the judgment.

The answer depends upon our construction of the following statutes, under which appellee claims:

"In case death of any workman who would himself have been entitled had such death not occurred, to recover from such employer on account of any such injuries under the terms hereof, claim may be filed therefor on behalf of his dependents as provided in section 8 [§ 57-917]." Sec. 57-913, N.M.Comp. 1941.

"In event any injury from accident arising out of and in the course of the employment of a workman should result in and be the proximate cause of his death and he should leave surviving him any dependents, as herein defined, entitled to compensation under the terms hereof, payment thereof may be received or claim therefor filed by such person as the court may authorize or permit, on behalf of the beneficiaries entitled thereto, and such claim shall be filed and answer made thereto and other procedure had as in cases filed by the injured workman. Provided, that no claim shall be filed or suit brought to recover such compensation unless claim therefor be filed within one [1] year after the date of such death." Sec. 57-917 N.M.Comp. 1941.

It is obvious that these statutes are not ambiguous, and standing alone, support the widow's contention that she and her four children have succeeded to the statutory benefits that had theretofore been awarded to her husband.

Counsel for appellants call our attention to the fact that compensation is provided for the widow and the minor children of a workman who lost his life by accident in the course of his employment, in the following language:

"* * *.

"In case death proximately results from the injury within the period of one [1] year, compensation shall be in the amounts and to the persons as follows:

"(1) If there be no dependents, the compensation shall be limited to the funeral expenses not to exceed one hundred and fifty dollars ($150.00) and the expenses provided for medical and hospital services for deceased, together with such other sums as deceased may have paid for disability.

"(2) If there are dependents at the time of the death, the payment shall consist of not to exceed one hundred and fifty dollars ($150.00) for funeral expenses and the percentage hereinafter specified of the average weekly earnings, subject to the limitations of this act (§ 57-901 — 57-931), to continue for the period of three hundred (300) weeks from the date of injury of such workman; Provided that the total death compensation payable in any of the cases hereinafter mentioned, unless otherwise specified, shall not be less than ten ($10.00) dollars per week nor more than eighteen ($18.00) dollars per week.

"If there be dependents entitled thereto, such compensation shall be paid to such dependents or to the person appointed by the court to receive the same for the benefit of such dependents in such portions and in such amounts as the court, bearing in mind the necessities of the case and the best interests of such dependents and of the public may determine, to be computed on the following basis, and distributed to the following persons:

* * * * * * "6. To the widow or widower, if there be four [4] or more children, sixty [60] per centum of earnings. * * *" Sec. 57-918 N.M.Comp. 1941.

The statute from which we have last quoted has been the law of this state in substantially the same language since 1917, though re-enacted several times. It is unambiguous, and totally unconnected with the provision in Sec. 57-913 under which appellee claims.

We then have two separate laws, each unambiguous and providing for a different relief for the widow and dependent children of a deceased workman, under different circumstances.

We stated in Atlantic Oil Producing Co. v. Crile, 34 N.M. 650,287 P. 696, 698, "If the statute is ambiguous, we shall have a case for construction. * * * We may resort to the established canons of construction. * * * We pass it now, and shall never reach it, unless appellant can introduce ambiguity and put us to interpretation."

In Wenning v. Turk, 78 Ind. App. 355, 135 N.E. 665, 666, an almost identical situation confronted the court. The question there was whether the unpaid balance of compensation to the next of kin depending upon deceased for support, had reference to the total amount that he would have received had he lived. The Indiana court held to the latter meaning. This being the only case we have found almost in point, we liberally quote therefrom, as follows:

"Section 36 of the Workmen's Compensation Act, § 8020t, 1 Burns Supp. 1921, reads as follows:

"``When an employe receives or is entitled to compensation under this act for an injury and dies from any other cause than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his next of kin dependent upon him for support.'

"Appellants contend that the words ``unpaid balance of compensation' as used in this section must be construed to mean compensation actually due the injured employe at the date of his death, and that it does not apply to the weekly installments of compensation that would have been paid to the employe had he lived. Section 31 of the Workmen's Compensation Act * * * provides that the employe shall receive, in lieu of all other compensation on account of his injuries, a weekly compensation of 55 per cent. of his weekly wages for the period of 150 weeks for the loss of an eye.

"Appellants contend that the law only required them to pay compensation to the date of the employe's death, and that the award for compensation subsequent to his death is contrary to law.

* * * * * * "Appellees base their claim to the unpaid balance of the compensation accruing after the death of the injured employe on section 36 supra. Appellants, however, insist that the ``unpaid balance of compensation' must be construed to mean the unpaid balance due when the injured employe dies, and that it has no reference to the installments that would have become due and payable to the employe had he not died. In this connection appellants call attention to section 37 of the Compensation Act * * *, and argue that the Legislature certainly did not intend that the ``next of kin' of an employe, who dies from causes other than the injury for which compensation was being paid, should receive more than the dependents of such employe would have received if the injured employe had died from the injury itself. Said section 37 provides that:

"``When death results from the injury within three hundred weeks, there shall be paid a weekly compensation * * * during such remaining part of three hundred weeks as compensation shall not have been paid to the deceased, on account of the injury in equal shares, to all dependents of the employee wholly dependent upon him for support at the time of the death. * * *'

"There is nothing ambiguous about section 36. There is nothing in it that calls for judicial construction. We are not at liberty to read into the statute the words ``due at the time of the death of such employe' as we would have to do in order to have it read as appellants contend. The situation presented by these two sections is anomalous, but it is a matter for legislative enactment rather than judicial interpretation. We are strongly impressed with the language used in City of Pittsburgh v. Kalchthaler, 114 Pa. 547, 7 A. 921, quoted in Kunkalman v. Gibson, 171 Ind. 503, 510, 84 N.E. 985, 987, 86 N.E. 850, wherein it is said:

"``We think it is always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent, or absence of intent, which would prevent the application of the words actually used to a given subject. Such a practice is really substituting the theories of a court, which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the lawmaking power. It is a practice to be avoided. It has been condemned by many text-writers and by many courts. Occasionally it has been departed from, but the path is a devious and a dangerous one, which ought never to be trodden, except upon considerations of the most convincing character and the gravest moment.'"

The only substantial difference between the Indiana statutes and those considered here is that the succession statute of Indiana runs to the heirs at law instead of the dependents. Here the succession statute and the compensation statute both run to the dependents. Ordinarily they are the same persons.

We have said more than once that when the language of a statute is plain and unambiguous there is no occasion to resort to the rules of statutory construction, and that such statute must be given its plain and obvious meaning. Vukovich v. St. Louis, Rocky Mountain Pacific Co., 40 N.M. 374, 60 P.2d 356; DeGraftenreid v. Strong, 28 N.M. 91, 206 P. 694; Harrison v. Harrison, 21 N.M. 372, 155 P. 356; L.R.A. 1916E, 854; Atlantic Oil Producing Co. v. Crile, 34 N.M. 650, 287 P. 696.

It is sought here, not to construe the statute under which appellee claims her right, but to totally eliminate it from the laws of the state. It is in no wise connected with Sec. 57-918 quoted above. They have no reference to each other. One of the statutes gives the dependents a cause of action in which the workman never had an interest. They are allowed specific weekly amounts depending on the number of children or other dependents. The other statute (the one under which appellee claims) provides for the succession of property rights of a deceased person to his dependents, which prior to his death had been awarded to him personally, either by the court or by the acts of the parties, and would ordinarily lapse at his death. We see no reason why the dependents should not be allowed this money that belonged to the workman.

We have no doubt but that the legislature intended to do exactly what it did do in passing these two statutes. Whether the widow and children could obtain benefits under both statutes is not a question in this case and need not be decided; but the legislature may have so intended notwithstanding the larger compensation that would have resulted had Gonzales died within a year after his injury. However, that is a legislative matter, and is foreclosed here by the statutes, which are clear, specific and unambiguous.

We have often held that the Workmen's Compensation Laws should be liberally construed (Stevenson v. Lee Moor Const. Co., 45 N.M. 354, 115 P.2d 342) but whether liberally construed or not the result in this case would not be different. We are not authorized judicially to eliminate rights conferred by the legislature.

We are of the opinion, and so hold, that the right to receive payments under the award of July 10, 1939, did not terminate by virtue of Sec. 57-918 on July 10, 1943, with the death of Cayetano L. Gonzales, and has not yet terminated, but survives for the benefit of his dependents under the provisions of Sec. 57-913.

For the reasons herein stated, the judgment of the trial court will be affirmed, with directions to the district court to enter judgment against appellant and its supersedeas sureties. Appellee is allowed $750.00 attorneys fees for the prosecution of her appeal in this court, and

It is so ordered.

BRICE, C.J., and McGHEE and COMPTON, JJ., concur.