146 P.2d 867 (N.M. 1944), 4797, McKinney v. Dorlac

Docket Nº:4797.
Citation:146 P.2d 867, 48 N.M. 149, 1944 -NMSC- 017
Opinion Judge:THREET, Justice.
Party Name:McKINNEY v. DORLAC et al.
Attorney:Dailey & Rogers and Jethro S. Vaught, Jr., all of Albuquerque, for appellants. H. O. Waggoner, of Albuquerque, for appellee.
Judge Panel:MABRY and BRICE, JJ., concur. SADLER, Chief Justice (dissenting). BICKLEY, J., concurs.
Case Date:February 23, 1944
Court:Supreme Court of New Mexico
 
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Page 867

146 P.2d 867 (N.M. 1944)

48 N.M. 149, 1944 -NMSC- 017

McKINNEY

v.

DORLAC et al.

No. 4797.

Supreme Court of New Mexico

February 23, 1944

Rehearing Denied April 3, 1944.

Appeal from District Court, Bernalillo County; Henry G. Coors, Judge.

Suit under the Workmen's Compensation Act by Helen McKinney against H. C. Dorlac, employer, and the Pioneer Mutual Compensation Company, insurer, to recover compensation for death of claimant's husband, Arthur McKinney. From an adverse judgment, the employer and insurer appeal.

Affirmed.

Dailey & Rogers and Jethro S. Vaught, Jr., all of Albuquerque, for appellants.

Page 868

H. O. Waggoner, of Albuquerque, for appellee.

THREET, Justice.

Appellee, Helen McKinney, filed her suit in the District Court of Bernalillo County, under the Workmen's Compensation Act, to recover compensation for the death of her husband, Arthur McKinney, occurring in an automobile accident near Encino, New Mexico, on August 8, 1941.

The facts, in substance, are as follows:

Prior to August 8, 1941, the deceased, Arthur McKinney, had been employed as a plasterer by appellant H. C. Dorlac off and on for a period of five years. H. C. Dorlac had a sub-contract with the Lembke Construction Company to do a plaster job in Roswell, New Mexico, beginning on August 11, 1941. On the evening of August 7, 1941, it was agreed between the appellant H. C. Dorlac and the deceased that the deceased would go to Roswell on August 8, 1941, and make preparations for starting the plastering work at Roswell, New Mexico, on August 11, 1941, on which job the deceased was to act as foreman for the appellant Dorlac. The deceased worked for the appellant Dorlac in Albuquerque, New Mexico, which was his residence, on August 7, 1941 and on the evening of that day was paid the wages due him and was also paid a day's wages for August 8, 1941 for the reason that if he had remained in Albuquerque he could have continued to work for the appellant Dorlac on that day, and was also to be paid for the day following his arrival in Roswell, New Mexico, if he arrived there in time to do a day's work. On August 8, 1941, the deceased together with appellee, his wife, and Edson Lee Flower, brother of appellee, left Albuquerque on or about noon of that day to drive to Roswell, New Mexico, in a 1934 Ford Coupe automobile owned and being driven by the deceased. They proceeded towards Roswell on the regular traveled route and on arriving at Encino, New Mexico, they stopped and spent an hour or more in a bar and cafe operated by Blas Garcia. At approximately 4 o'clock of that day they left Encino to continue their journey to Roswell, New Mexico. The deceased was driving the automobile. Edson Lee Flower was sitting on the right hand side of the automobile, and the appellee was sitting between her brother and the deceased. They had driven approximately about one and one-half miles east of Encino, when they had an accident in which deceased lost his life. The highway at the point of the accident was straight for a considerable distance. The deceased was driving the automobile at approximately 55 miles per hour when Edson Lee Flower noticed that the wheels on the left side of the automobile were over on the left side of the white line in the center of the highway. Edson Lee Flower called this to the attention of the deceased, whereupon the deceased pulled the automobile to the right side of the highway when the brakes appeared to lock and the automobile left the highway and turned over resulting in the death of the deceased. Appellant Dorlac carried workmen's compensation insurance with appellant Pioneer Mutual Compensation Company. At the close of the testimony for appellee, appellants moved for a dismissal of appellee's claim for compensation on the following grounds: "If the court please, the plaintiff having rested, defendants, and each of them, move the court to dismiss plaintiff's claim for compensation for the reason that plaintiff's testimony and that of witnesses affirmatively show that the death of Arthur McKinney did not result from injuries from the extra hazardous occupation, or pursuant to his employment, as used in the workmen's compensation act, for the reason that it did not occur on or about the premises occupied, used or controlled by the employer in the conduct of his business as a plaster contractor, but occurred while he was on his way to assume the duties of his employment at Roswell, New Mexico, and that the testimony wholly fails to show that the approximate cause of his injury was due to the negligence of his employer."

The trial court overruled appellants' motion to dismiss, whereupon they demurred to the evidence. The demurrer was based upon the identical grounds set forth in the motion to dismiss. The demurrer was also overruled. Appellants electing to stand upon their motion and demurrer, judgment followed in favor of appellee.

Assignments of error are as follows:

"1. The district court erred in overruling the motion to dismiss interposed at the conclusion of claimants testimony.

"2. The district court erred in overruling the demurrer to the evidence interposed to the conclusion of claimants testimony."

The facts are undisputed. The question here becomes one of law. This case was instituted under the New Mexico Compensation

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Act, 1941 Comp., Sec. 57-912, Subsec. L, which reads as follows: "The words 'injuries sustained in extra-hazardous occupations or pursuit,' as used in this act (§§ 57-901-57-931) shall include death resulting from injury, and injuries to workmen, as a result of their employment and while at work in or about the premises occupied, used or controlled by the employer, and injuries occurring elsewhere while at work in any place where their employer's business requires their presence and subjects...

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