Brown v. Arapahoe Drilling Co.

• Decision Date: 09 April 1962
• Docket Number: No. 6858,6858
• Parties: Bessle BROWN, Widow of Edward Lee Brown, Deceased, and parent of David Clyde Brown, Randy Lee Brown and Robert Donald Brown, minor children of Bessie Brown and Edward Lee Brown, Deceased, Claimant, Plaintiff-Appellant, v. ARAPAHOE DRILLING COMPANY, Employer, and The Aetna Casualty and Surety Company, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 816

370 P.2d 816

70 N.M. 99

Bessle BROWN, Widow of Edward Lee Brown, Deceased, and

parent of David Clyde Brown, Randy Lee Brown and Robert

Donald Brown, minor children of Bessie Brown and Edward Lee

Brown, Deceased, Claimant, Plaintiff-Appellant, v. ARAPAHOE DRILLING COMPANY, Employer, and The Aetna Casualty and Surety Company, Insurer,

Defendants-Appellees.

No. 6858.

Supreme Court of New Mexico.

April 9, 1962.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellant.

Gilbert, White & Gilbert, Sumner S. Koch, Santa Fe, for appellees.

CARMODY, Justice.

This appeal is from the denial of a claim for workmen's compensation field by the widow of a deceased workman.

The principal question requiring determination relates to the application of the 'dual purpose doctrine' to the statutory exclusion of 'going and coming from' work, as provided in Sec. 59-10-12(l), N.M.S.A., 1953 Comp. A problem with respect to election of remedies as between a workmen's compensation claim and a suit against a third-party tort-feasor is also to be considered.

The findings of fact by the trial court are not attacked and, therefore, are binding on us. See, Dowaliby v. Fleming, 1961, 69 N.M. 60, 364 P.2d 126, and cases cited therein. Therefore, summarizing the material facts as to this issue: The deceased Brown was a driller in charge of the crew which worked on a drilling rig from four o'clock, P.M., until midnight. Brown had authority to hire and fire the members of the crew and was paid fifty-five cents per hour more than the other members. The well site was some fifty to sixty miles from the homes of the workers, and the employer did not furnish transportation, as a result of which the deceased and three other members of his crew had a carpooling arrangement by which each drove his own car every fourth day. On the day in question, the car was owned and driven by one of the other members of the crew. The employees furnished their own gasoline, except that at times they helped themselves to gasoline from a company tank at the well site, without either permission or objection by the company. The tool pusher, or general foreman, was named McAfee, who was Brown's immediate supervisor, and it was McAfee's responsibility to deliver the drilling report, or daily log, to the company offices at Farmington, New Mexico. Sometime before midnight on the day in question, McAfee wanted to leave the well location and asked Brown to bring the drilling report with him when he finished his shift. McAfee was to pick up the report the following morning at Brown's house, sign it, and deliver it to the company offices. Brown had never performed this service before, but on this occasion it was important that the report be delivered to the office, inasmuch as it was at the end of the payroll period. When the men left the well site sometime after midnight, Brown put the report in the glove compartment of the car. On the way home, on the public highway, a single-car accident occurred, and Brown was killed.

In addition to the above facts, the trial court, by finding No. 25, found that the trip made by Brown was for the purpose of returning home, and would have been made in the same manner if he had not been taking the record with him. By finding No. 26, the court found, in effect, that the taking of the record into town would not have required a separate trip by anyone, but that if Brown had not been making the trip to his home, the tool pusher would have requested one of the other employees to take the record with him, or the tool pusher himself would have waited until the end of the shift to take it. As a part of this finding, it was also determined that the tool pusher was furnished a company car and that the making of such trips was a part of his regular employment. In finding No. 29, it was determined that the pay of Brown did not include compensation for any services other than those performed at the well site.

Appellant urges that, under the facts, judgment should have been awarded to the claimants, because the carrying of the drilling report was within the course of Brown's employment, particularly when it is considered that Brown received extra pay as a driller and by reason of the using of the company gasoline for making some of the trips.

The trial court's finding No. 29, supra, disposes of the extra-pay assertion, and in this respect distinguishes this case from Wilson v. Rowan Drilling Co., 1951, 55 N.M. 81, 227 P.2d 365. Brown was not paid for getting his crew back and forth to and from the well site. The occasional utilization of the company's gasoline can hardly be considered as justifying a holding that the company intended to extend the course of employment to going to and from the site, especially where there was no understanding or express permission allowing such acts. We do not feel that it can be considered as payment by the employer of all or part of the cost of transportation, so as to bring this case within one of the recognized exceptions to the 'going and coming' rule. Thus, Barrington v. Johnn Drilling Co., 1947, 51 N.M. 172, 181 P.2d 166, is not in point.

Therefore, it would seem that the claimant's right to recovery must depend entirely upon the transporting of the report in the manner above related.

The statutory language pertinent to this portion of the case is as follows:

'The right to the compensation provided for in this act * * * shall obtain in all cases where the following conditions occur: * * * (b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment. * * *' Section 59-10-6, 1953 N.M.S.A.

'* * * injuries to workmen, * * * 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.' Section 59-10-12(l), 1953 N.M.S.A.

The answer to the problem is to be found in Marks' Dependents v. Gray, 1929, 251 N.Y. 90, 167 N.E. 181, an opinion by Judge Cardozo, in which it was said:

'* * * We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. * * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.'

The above test, as said in 1 Larson's Workmen's Compensation Law, at 241, is 'a formula which, when rightly understood and applied, has never yet been improved upon.' As an aid in understanding and applying the test, Professor Larson, at 244, states that following:

'* * * One detail must be stressed to make this rule complete: it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with this employee's personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental...