Carter v. Burn Const. Co., Inc.

• Decision Date: 26 January 1973
• Docket Number: No. 894,894
• Citation: 85 N.M. 27,508 P.2d 1324,1973 NMCA 156
• Parties: Susan Kathlyn CARTER, Plaintiff-Appellant, v. BURN CONSTRUCTION COMPANY, INC., and Employers Commercial Union Insurance Group, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1324

508 P.2d 1324

85 N.M. 27

Susan Kathlyn CARTER, Plaintiff-Appellant, v. BURN CONSTRUCTION COMPANY, INC., and Employers Commercial Union Insurance Group, Defendants-Appellees.

No. 894.

Court of Appeals of New Mexico.

Jan. 26, 1973.

Rehearing Denied Feb. 20, 1973.

Certiorari Denied March 28, 1973.

Glenn B. Neumeyer, Sosa & Neumeyer, Las Cruces, for plaintiff-appellant.

Edward E. Triviz, Las Cruces, for defendants-appellees.

OPINION

HERNANDEZ, Judge.

Plaintiff as widow of Robert Carter, deceased, and in behalf of their minor child filed a claim for workmen's compensation benefits. The trial court granted defendant's motion for summary judgment and plaintiff appeals.

The ultimate issue is whether the trial court erred in deciding that the accident, which resulted in Robert Carter's death, did not arise out of and in the course of his employment, as a matter of law. Section 59--10--2, N.M.S.A.1953 (Repl.Vol. 9, pt. 1).

The essential facts are undisputed. The deceased was employed by the defendant, Burn Construction Company, Inc., as a 'grease monkey'. The truck that he was driving at the time of the accident was furnished him for the purposes of his employer and incidental to his work he was required to drive it home. At the time of the accident he was following what was the most direct and convenient route home. The exact time he left work is not known, however, it is known that at about 5:30 p.m. he arrived at the Red Carpet Lounge where he joined two other employees. He spent the next four and one-half hours there drinking beer, playing pool, and conversing with his friends. The exact amount of beer consumed by the deceased is not known. However, the record does disclose that at the time the deceased started to leave, which was about 10 p.m., one of his co-employees offered to drive him home because he thought he was too intoxicated to drive. The question of the deceased's intoxication, as a defense, is not before us. We mention this incident because we do believe that it is a factor, which together with the length of time spent by the deceased at the Lounge, must be considered in determining whether he had abandoned his employment or whether these events could be considered a minor deviation so that when he resumed his journey home he was once again within the scope of his employment. The accident occurred on Friday, May 29, 1970 at about 10:15 p.m. The truck, for no apparent reason, went out of control, rolled over and burned. The applicable rules are well established: Ordinarily injuries sustained by an employee while on his way to work or after leaving are not compensable. Rinehart v. Mossman-Gladden, Inc., 77 N.M. 470, 423 P.2d 991 (1967); Martinez v. Fidel, 61 N.M. 6, 293 P.2d 654 (1956). But there are exceptions to the rule. One such is where the employer agrees to and does furnish transportation to and from work. Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166 (1947). An employee, who while on a trip in the course of his employment, makes a minor deviation for personal reasons, is outside the scope of his employment during the deviation. However, once he returns to the route of the business trip he re-enters the scope of his employment and responsibility attaches. Lockwood v. Board of Trustees, Speedway Meth. Ch., 144 Ind.App. 430, 246 N.E.2d 774 (1969); Woodley v. Rossi, 152 Conn. 1, 202 A.2d 136 (1964). Very minor deviations are disregarded or considered as part of the employment agreement. Sullivan v. Rainbo Baking Company, 71 N.M. 9, 375 P.2d 326 (1962); Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849 (1962). However, if in the course of a business trip an employee makes a major deviation, major because of its duration in time or because of its nature, or both, it can be said that as a matter of law he has abandoned his employment. Then, regardless if he returns to the route of the business trip, this does not in and of itself return him to the scope of employment and an injury occurring after this does not arise out of or in the course of his employment. Johnson v. McGehee Brothers Furniture Company, 256 So.2d 741 (La.App.1972); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Dooley v. Smith's Transfer Co., 57 A.2d 554, 26 N.J.Misc. 129 (1948).

This record demonstrates a major deviation and compels the conclusion that the deceased had abandoned his employment and was merely pursuing his own pleasure.

Plaintiff argues that there were several errors committed by the trial court which had they not occurred would have allowed the consideration of evidence that could have materially influenced its decision in granting defendant's motion for summary judgment.

The first of these is that the trial court erred in granting defendant's motion to strike subpoena duces tecum issued pursuant to Rule 45(b), (§ 21--1--1(45)(b) N.M.S.A.1953 (Repl. Vol. 4)), and an affidavit by plaintiff's counsel in opposition to defendant's motion for summary judgment. The motion for summary judgment was filed September 29, 1971 and was set for hearing on October 19, 1971. On October 18, 1971 plaintiff's attorney filed his affidavit in opposition to the motion which related in part that:

'In the course of his representation of the plaintiff, deponent has spoken with several witnesses and related here is the substance of the information gathered.'

He then went on to recite what they had told him and that they had stated they would be willing to testify if asked. Attached to the affidavit were copies of the accident report, the death certificate, and the copy of a statement of a witness taken by defendant's insurance carrier. The affidavit also recited that deponent had taken various pictures of the scene of the accident which would be presented at the hearing and that an examination of an El Paso map would show that the deceased had traveled several miles before the accident without incident. It also recited that 'deponent believes that the defendants and their counsel have among the papers in their files various statements from persons having knowledge concerning the accident. They are being subpoenaed for production on the return of this motion.'

Section 21--1--1(56)(e) N.M.S.A.1953 (Repl. Vol. 4) provides in part:

'Supporting and opposing affidavits (referring to motions for summary judgment) shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.' § 21--1--1(56)(e), N.M.S.A.1953 (Repl. Vol. 4). (Emphasis ours) Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).

Clearly this affidavit did not comply with the provisions of rule (56)(e) supra, and the trial court did not err in striking it.

A copy of the subpoena duces tecum does not appear in the record. However, other documents in the record reflect that plaintiff's counsel sought to subpoena defendant's counsel and any statements in his possession made by certain individuals concerning this case. Our rules of civil procedure like the federal rules after which they are patterned, are designed to enable parties to easily discover all of the relevant facts and therefore the discovery provisions should be given as liberal an interpretation as possible in order to effectuate this design. Davis v. Westland Development Company, 81 N.M. 296, 466 P.2d 862 (1970). However, confronting the desire not to stultify the purposes of discovery is the equally compelling desire to protect our adversary system of litigation. Under our system it is important that the privacy of a lawyer be protected in doing whatever is necessary to properly prepare his case. Equally important is the preservation of the competitiveness of our system which we believe would be adversely affected should a lawyer be compelled to disclose his work to opposing counsel without some compelling reason. We are speaking here of nonprivileged facts. The statements which plaintiff sought fall outside the scope of the privilege of attorney-client. However, they were the statements of witnesses whose identity was known and who could have been deposed by plaintiff or their statements obtained directly. There was no showing of necessity for the production of statements or alternatively that injustice would result if they were not made available. We therefore hold that a burden rests upon the party, who seeks the production and inspection by subpoena or court order of any information, memoranda, briefs, communications, reports, statements or other writings prepared by a lawyer or at his direction for his own use in prosecuting his client's case, to establish that there is good cause why the desired material should be made available to him. To establish good cause a party must show that the material sought is not available upon the exercise of diligent effort and that it is necessary for the preparation of his case, or that the denial of the production and inspection of the material sought will unfairly prejudice his case or cause him undue hardship or injustice. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Ford Motor Company v. Havee, 123 So.2d 572 (Fla.App.1960); Alltmont v. United States, 177 F.2d 971 (3rd Cir. 1949); United States v. 6.82 Acres of Land, etc., 18 F.R.D. 195 (D.N.M.1955).

The trial court did not err in striking the subpoena duces tecum.

Plaintiff argues that there was evidence that the deceased received a phone call just before he left the Red Carpet Lounge and that he probably left in response to this call because he did not even wait to eat a hot dog he had ordered. The testimony as to the phone call came from the deposition of John Harrison Poor one of the deceased's fellow employees who was with him at the Lounge. Poor...