Barton v. Skelly Oil Co.

• Decision Date: 21 May 1943
• Docket Number: No. 4727.,4727.
• Citation: 47 N.M. 127,138 P.2d 263
• Parties: BARTONv.SKELLY OIL CO.
• Court: New Mexico Supreme Court

47 N.M. 127

138 P.2d 263

BARTON

v.SKELLY OIL CO.

No. 4727.

Supreme Court of New Mexico.

May 21, 1943.

Appeal from District Court, Fifth Judicial District, Roswell County; McGhee, Judge.

Proceeding under the Workmen's Compensation Act by Homer Barton, employee, opposed by Skelly Oil Company, employer. From a judgment for the employer, the employee appeals.

Judgment reversed with directions.

Findings that employee was injured by bite of poisonous insect while aiding in laying of pipe line through open, country of natural mesa grass and mesquite showed that employee was subjected to a greater hazard than general public and members of community of place where employees worked who were not so employed and that employee suffered an “accidental injury”, so as to be entitled to recover compensation. Comp.St.1929, § 156-101 et seq. as amended.

Neal & Girand, of Hobbs, for appellant.

Don G. McCormick, of Hobbs, for appellee.

MABRY, Justice.

Plaintiff-appellant claims compensation under the Workmen's Compensation Act of New Mexico, Comp.St.1929, § 156-101 et seq. as amended, for an accidental injury alleged to have resulted from the bite of a poisonous insect and occurring, on June 19, 1941, while plaintiff-appellant was employed by defendant-appellee in the process of laying an oil pipe line in Lea county. He appeals from an unfavorable decision made by the court without a jury. For convenience, the parties will hereinafter be referred to as plaintiff and defendant, respectively.

It is not disputed that plaintiff was working for defendant at the time and place alleged, and that his average weekly wage was $23.20. Defendant, its own insurer, defended against the claim upon the ground that it was not compensable since it was not an accident within the meaning of the Act in question, and for the further reason that there was no competent evidence to establish the causal relationship between the alleged accident and the disability suffered. Plaintiff claims for a loss of nine and a half weeks because of the disability resulting from the accidental injury complained of. In his appeal plaintiff challenges the trial court's application of the law to the facts found. Defendant company, which likewise assigned and urges error, challenges the court's finding that plaintiff was bitten by a poisonous insect; the court's refusal to strike a portion of plaintiff's testimony going to the circumstances surrounding the injury complained of; and its refusal to make defendant's requested conclusion of law that the testimony of plaintiff, a layman, was incompetent to establish the causal relation between the alleged injury and disability.

We refer now to the contention of plaintiff that there being a supportable finding of fact to the effect that he was in fact bitten by a poisonous insect the court should have concluded, as a matter of law, that the injury was accidental and compensable, and likewise to defendant's assignment of error where he challenges the finding on this point as not being supported by substantial evidence, but approving, of course, the court's application of the law, nevertheless.

[1] We hold there was substantial evidence to support each and all the findings made, all of which were in behalf of plaintiff. These, in substance, were that at the time in question, plaintiff was employed by defendant in laying a pipe line in the open country in Lea county, New Mexico; that while in the course of such e mployment plaintiff was bitten by a poisonous insect, as a result of which bite he was totally disabled for a period of nine and a half weeks, and that the compensation to which plaintiff would be entitled, if he in fact came within the Act, would be $118.32, plus an additional $21.60 as expense incurred for medical attention.

It is obvious that the court denied compensation for the reason that plaintiff, in its opinion, did not show that under the circumstances of his employment at the time of his injury he was subjected to a greater hazard and risk than the general public and members of the immediate community of the place in question who were not so employed. Such distinction was not properly appraised or applied here.

The construction of the pipe line in question required the digging of a ditch, or trench, in the earth and through an open country in which ditch, or trench, pipe was laid and through it the oil and gas was thereafter to be transported to market. Plaintiff was employed in putting down the pipe. He was known as a “welder helper” as well as a “pipeliner”. The area in which the pipe was laid in the newly dug opening embraced an open country of natural mesa grass, and mesquite, which is a rough, hardy, bushy, wild growth common to much of this area of the country. The testimony of plaintiff himself showed that at the time in question he was working in this area “laying a four inch pipe line down through those mesquites.” He further testified, “The first thing I knew my leg began to itch, burned, and I began scratching and I felt a knot swelling up there, and when it began to hurt me pretty bad and I had noticed it there was a great big knot there ***. I could see the place and feel it. I certainly do know that something bit me.” Plaintiff continued working for two or three hours and then left the work. He admits he did not see the insect which bit him, but that he knows what bit him and has observed like symptoms resulting from the bite of black widow spiders and that he believes this was the insect which bit him. There is testimony from at least one other witness showing that plaintiff, soon after he received the alleged bite, complained, uncovered himself and showed to others the ugly wound and mark clearly apparent. We can easily understand that working under such circumstances one might be bitten by a poisonous insect, or reptile, and yet not be able to see or thereafter locate the offender.

Defendant's challenge to the court's findings as being unsupported by evidence is without merit; and, likewise, is defendant's assignment to the effect that the court erred in considering the testimony of plaintiff upon the question of what caused the injury. Defendan...