Bland v. Greenfield Gin Co.

• Decision Date: 10 March 1944
• Docket Number: No. 4831.,4831.
• Parties: BLANDv.GREENFIELD GIN CO. et al.
• Court: New Mexico Supreme Court

48 N.M. 166

146 P.2d 878

BLAND

v.GREENFIELD GIN CO. et al.

No. 4831.

Supreme Court of New Mexico.

March 10, 1944.

Appeal from District Court, Chaves County; J. C. Compton, Judge.

Proceedings under the Workmen's Compensation Act by Willie Mae Bland, claimant, to recover for the death of her husband, William Halsey Bland, opposed by Greenfield Gin Company, alleged employer, and Maryland Casualty Company, insurer. Judgment for claimant, and alleged employer and insurer appeal.

Reversed.

Findings of fact supported by substantial evidence will not be disturbed by Supreme Court, but findings of fact not supported by substantial evidence cannot be sustained and a judgment based thereon is without support.

L. O. Fullen, of Roswell, for appellants.

Frazier & Quantius, of Roswell, for appellee.

THREET, Justice.

Appellee, Willie Mae Bland, brought suit under the Workmen's Compensation Act, N.M.S.A. 1941, § 57-901 et seq., for the death of her husband, William Halsey Bland, against appellants, the Greenfield Gin Company, a corporation, and the Maryland Casualty Company, insurer. From a judgment in favor of appellee appellants appeal, assigning errors to-wit:

1. The court erred in its findings of fact Nos. 3 and 4 and refusing to adopt appellants' requested finding of fact No. 5.

2. The court erred in its findings of fact Nos. 1 and 2 and refusing to adopt appellants' requested finding of fact No. 1.

3. The court erred in its findings of fact Nos. 5 and 6.

4. The court erred in refusing to adopt appellants' requested findings of fact Nos. 2, 3 and 4.

5. The court erred in its conclusion of law No. 1 and refusing to adopt appellants' conclusion of law No. 1.

The courts findings of fact and conclusions of law are:

“1. That the death of William Halsey Bland arose out of and in the course of his employment with the Greenfield Gin Company, with the defendant Maryland Casualty Company, a corporation, the insurer.

“2. That at the time of the death of the said William Halsey Bland, he was acting in the course of his employment with the said defendant, Greenfield Gin Company.

“3. That the said William Halsey Bland was not an independent contractor.

“4. That the contract of employment between the said William Halsey Bland and the said Greenfield Gin Company permitted full control of the work by the employer, and that the said decedent entered upon the work of his employment on September 26, 1942 and continued until the time of his death, January 13, 1943, with no regular hours of employment either day or night.

“5. That on the evening of January 13th, 1943, a fire broke out in the gin of the employer which could not be controlled by the employees on duty; that the decedent and others responded to the call for help; and that said decedent was active in fighting said fire, with the full knowledge and approval of the foreman on duty.

“6. That said fire was an emergency and it was necessary for all employees to use every reasonable effort to control it, and while the decedent was fighting said fire he contacted an electric wire which instantly caused his death.

“7. That the decedent left his widow, the plaintiff, and two minor children of the ages of nine and five years, respectively, dependent upon him for support.

“8. That plaintiff's attorney herein should be allowed the sum of $250.00 for their services for the plaintiff in this cause.

“1. That the plaintiff is entitled to a judgment for the benefits of the compensation act for herself and her minor children, as prayed for in her complaint.

“2. That plaintiff is entitled to judgment for attorney fees in the amount of $250.00.”

The deceased was engaged in hauling seed for the appellant, Greenfield Gin Company, under an oral contract, and was accidentally killed while helping to extinguish a fire that had broken out in the gin plant. The defense was that the deceased was not a workman within the meaning of the act.

The first point relied upon for reversal is that the court erred in finding that the deceased was an employee of the appellant, Greenfield Gin Company, and not an independent contractor.

Appellant argues that the findings of fact Nos. 3 and 4 are not supported by substantial evidence, but on the contrary the evidence shows that the deceased was an independent contractor. Appellants tendered the following finding of fact, which was refused by the court, to-wit:

5. That decedent was not an employee of the Greenfield Gin Company but was an independent contractor.

[1] The rule, that findings of fact supported by substantial evidence, will not be disturbed by this court is so well established that a citation of authorities is unnecessary. But findings of fact not supported by substantial evidence cannot be sustained and a judgment based thereon is, itself, without support. Manby v. Voorhees, 27 N.M. 511, 203 P. 543; Jones v. Jernigan, 29 N.M. 399, 223 P. 100; Salas v. Olmos, 47 N.M. 409, 143 P.2d 871.

The contract between Greenfield Gin Company and the deceased will determine whether his relationship to the gin company at the time of his death was that of an independent contractor or that of an employee. Since the contract was oral, its terms and conditions must be gleaned from the testimony of S. W. Smith, manager of appellant, Greenfield Gin Company, and from the testimony of James Bland, brother of the deceased. The testimony of each will be summarized as briefly as a clear understanding of the case permits.

The witness, S. W. Smith, was in complete control of the gin company business. He arranged orally with the deceased in July, 1942, to haul all seed for the ginning season of 1942-1943 from the two gins located at Greenfield and Dexter, New Mexico. Whenever necessary, the deceased was to use two trucks in such hauling, primarily his own, and, as the amount of cotton ginned for the season might warrant, the gin company's truck. The deceased was to furnish drivers for both trucks and the gin company and the deceased would pay the operating expenses of the truck furnished by each.

The deceased had the exclusive right to haul all the seed for appellant, Greenfield Gin Company, for the ginning season of 1942-1943, and the seed were to be hauled to Roswell and Otis, New Mexico. The deceased was to be paid for the hauling on a tonnage basis, the price depending on whose truck was used and whether delivery was made at Roswell or Otis. For delivery to Roswell, the deceased would receive forty cents per ton, if the gin company truck was used, and $1.25 per ton if his own truck was used. For the hauling to Otis, the deceased would receive eighty cents per ton for hauling in the company truck and $2.50 per ton for hauling in his own truck.

If extra help was needed in moving the seed, the deceased was to employ and pay for it from the proceeds received for hauling the seed under the terms of his contract. As manager of Greenfield Gin Company, the witness, Smith, had nothing to do with employing or discharging any helpers hired by the deceased. The latter had the right, so long as he kept the seed moving from the gin, to do extra hauling for the gin company and for other people without having to account to the gin company for any of the revenue received from such extra hauling. The gin company had no right to discharge the deceased and the deceased had no right to quit. The latter usually was paid on Saturday nights, based upon the number of tons hauled during the week. On one occasion, when the deceased got behind with the seed hauling because he had been using his truck to haul cattle, the witness, Smith, asked deceased's permission to put on another truck to help him out. The deceased consented and another driver and truck were employed to haul three or four loads. So much for the terms of the contract and the operation thereunder as testified to by S. W. Smith, manager of the gin company.

James Bland, a witness for appellee, threw further light on the arrangement. He was a brother of the deceased and worked for him in hauling seed. The deceased paid him his wages. Manager Smith did not give him any directions “right out”, but if he and his brother got behind with the seed hauling, the manager would become a little uneasy and at one time the manager put on another truck to haul seed for a few days. In hauling the seed, Manager Smith, furnished one truck and the witness' brother furnished one. Each paid the operating expenses of the truck so furnished. When they could not handle any more seed at Roswell, either the witness or his brother, the deceased, would advise Manager Smith, who would direct them to make deliveries at Otis.

The witness, Bland, was not present when Manager Smith and his brother entered into the contract. After his brother's death, he, the witness, took over the contract upon the same basis. The reason another truck was put on the seed haul by the gin company was that he and his brother could not haul all the seed away. He understood the reason his brother was hired was that Manager Smith wanted someone for the entire ginning season. When they caught up with the seed hauling, his brother did independent hauling and retained all the revenue derived therefrom. The gin company paid his brother extra for hauling gin supplies from Roswell and Otis, New Mexico. His brother hired other employees and paid them himself and the gin company had nothing to do with hiring them or laying them off. Manager Smith gave them directions when to deliver seed to Roswell or Otis and occasionally would mention that the seed ought to be cleaned up around the seed house. They had no regular working hours -just worked when they took “the notion to”. When the witness was working with his brother prior to the latter's death, they took orders from Manager Smith “when he had any to give”. He did give orders “once in a while”.

It is true the evidence is rather meager, relative to the terms and conditions of the contract, between the deceased and appellant, ...