BARRINGTON v. JOHNN DRILLING CO.

• Decision Date: 21 May 1947
• Docket Number: No. 4983,4983
• Citation: 51 N.M. 172,181 P.2d 166
• Parties: BARRINGTON v. JOHNN DRILLING CO. et al.
• Court: New Mexico Supreme Court

51 N.M. 172

181 P.2d 166

BARRINGTON

v.JOHNN DRILLING CO. et al.

No. 4983.

Supreme Court of New Mexico.

May 21, 1947.

[181 P.2d 167, 51 N.M. 173]

John R. Brand, of Hobbs, Jones, Hardie, Grambling & Howell, of El Paso, Tex., and Seth and Montgomery, of Santa Fe, for appellants.

Neal & Girand and Harris & Williams, all of Hobbs, for appellee.

COMPTON, Justice.

Appellee, Effie Mae Barrington, filed suit in the District Court of Lea County underthe Workmen's Compensation Act to recover compensation for the death of her husband, Richard M. Barrington.

Briefly, the basic facts are: Richard M. Barrington was an oil well driller and engaged in drilling wells in Lea County, in the vicinity of Eunice, some thirty miles from Hobbs, New Mexico, where he lived. He was employed by the defendant, Johnn Drilling Company, with American Employers' Insurance Company, insurer, as a driller. He was required, under his employment with the defendant, to furnish the drilling crew, usually consisting of three men besides himself. No housing facilities were provided at the job site and it became the duty of the driller to transport the drilling crew back and forth daily to work from their homes in Hobbs, New Mexico, in an automobile furnished by him. Barrington's employment required him to travel a distance of approximately sixty-five miles daily, for which he was to be and was paid by the defendant, seven cents per mile for transportation, in addition to his regular hourly wages. On the sixth day of September, 1945, while engaged in the transportation of the drilling crew from their place of work to their homes at Hobbs, an accident occurred, resulting in the death of the said employee, Richard M. Barrington. At the hearing before the trial court, it was admitted by the defendant that the employee Barrington was transporting himself and other members of the crew to and from work in the deceased's car. It was also stipulated that the accident was not caused by any negligence of the employer as a proximate cause of the injury.

The applicable provision of the Workmen's Compensation Law is Section 57-912, Subsection (l), which reads as follows:

'(l) The words 'injuries sustained in extra-hazardous occupations or pursuit,' as used in this act (Secs. 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 them to extra-hazardous duties incident to the business, but shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the approximate cause of which injury is not the employer's negligence.'

At the conclusion of the hearing the Court rendered its decision, making the following pertinent findings of fact:

'4. That under the contract of employment between the employees and the drilling company, the Company furnished transportation for said employees, including the deceased, from their place of residence in Hobbs, New Mexico, to the well and return,and that $.07 per mile was paid to the employee on the crew who furnished the car for transportation, mand it was the duty of the deceased, Richard M. Barrington as the driller to furnish the car for transportation or see that some member of the crew furnished it, and that the deceased had during the time he had been in the employ of the defendant drilling company for several months furnished such transportation and had been regularly paid therefor by checks of the Johnn Drilling Company, but it was immaterial to the employer as to which employee furnished and drive the car which transported them.

'5. That until a few months prior to the death of the deceased, drilling companies operating in Lea County, New Mexico, did not furnish transportation, and the defendant, Johnn Drilling Company did not furnish transportation to their employees, but due to the freezing of wages of employees in oil fields the Johnn Drilling Company agreed to and did furnish such transportation for its employees as an increase in wages and in order to get better crews.

'6. That the deceased Richard M. Barrington, was killed while driving the automobile which he had furnished and in which the fellow members of his crew were riding as the result of a collision with a truck on the highway approximately ten miles north of the drilling site and on the direct and usually traveled route from the drilling site to Hobbs, New Mexico, after he had completed his tower duty; that is, his drilling on the well for which he was paid an hourly wage, and the employer was not guilty of any negligence in connection with the collision.

'7. That it was the duty of the person furnishing the car, in this case Richard M. Barrington, to pick up the various members of the crew at their homes in Hobbs, New Mexico, transport them to the drilling site, and after their working hours were completed at the oil well to transport and deliver each member of the crew to his home in Hobbs, New Mexico, and the deceased was engaged in such mission at the time he met his death.'

Appellants assign the following as error:

'Assignments of Error.

'Assignment of Error No. I. The Trial Court erred in rendering judgment in favor of Appellee and against Appellants for compensation, attorney's fees and funeral expenses because the undisputed evidence showed that the injuries which caused the death of Appellee's husband occurred after leaving the duties of his employment and the employer was not negligent.

'Assignment of Error No. II. The Trial Court erred in finding that the employer furnished transportation to the employees when the undisputed evidence showed that the means of transportation were furnished by the employees themselves and that the company exercised no supervision or controlover its employees during the period when employees were travelling between their homes and the well site and the car in which the decedent was riding was owned by the decedent and under his sole control and supervision.'

Appellants contend that the accident resulting in the death of the deceased did not arise out of and in the course of his employment, and that the deceased came within the latter provision of subsection (l), supra, to wit:

'* * * but shall not include injuries to any workman occurring while on his way to assume the duties of his employment orafter leaving such duties, the approximate cause of which injury is not the employer's negligence.'

and that in the absence of negligence, admittedly not present here, of the employer proximately causing the injury of the deceased, appellee would not come within the terms of the Workmen's Compensation Act, and for a reversal cite: Caviness v. Driscoll Construction Company, 39 N.M. 441, 49 P.2d 251; Cuellar v. American Employers' Insurance Company of Boston, Massachusetts, 36 N.M. 141, 9 P.2d 685; Lumberman's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72; McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Public Service Company of Northern Illinois v. Industrial Commission et al. 370 Ill. 334, 18 N.E.2d 914; Republic Underwriters v. Terrell, Tex.Civ.App., 126 S.W.2d 752.

Conversely, appellee concedes she is not relying upon the latter part of said subsection but maintains she is entitled to recover compensation under that part of said subsection reading as follows:

'* * * 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 them to extra-hazardous duties incident to the business, * * *'

and that the injury complained of was sustained while the deceased was engaged in the performance of his contract of employment, and that said injury arose out of and in the course of this employment.

Appellants maintained that appellee, to come within the terms of the Act, must show negligence of the employer proximately resulting in said injury, and that the legislature by adding the latter part of said section precludes recovery of compensation in any event where negligence is not shown on the part of the employer. They maintain our decisions in Caviness v. Driscoll Construction Company and Cuellar v. American Employers' Insurance Company of...