Cuellar v. Am. Employers' Ins. Co. of Boston

• Decision Date: 16 March 1932
• Docket Number: No. 3592.,3592.
• Citation: 9 P.2d 685,36 N.M. 141
• Parties: CUELLARv.AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS.
• Court: New Mexico Supreme Court

36 N.M. 141

9 P.2d 685

CUELLAR

v.AMERICAN EMPLOYERS' INS. CO. OF BOSTON, MASS.

No. 3592.

Supreme Court of New Mexico.

March 16, 1932.Rehearing Denied April 14, 1932.

Syllabus by the Court.

Death of employee of state highway department resulting from being struck on head with rock during blasting operation, though accident occurred after employee left duties and was on way home, held to “arise out of and in course of employment,” within Workmen's Compensation Act (Comp. St. 1929, § 156-112 ( l).

Where workman engaged in road building shortly after leaving his duties, while on his way to his home, by a reasonable and not prohibited route, and in the area which was then being used by his employer, and in close proximity to premises occupied, used, and controlled by his employer, was killed by negligence in prosecuting the road building, attributable to his employer, held, that compensation was recoverable by dependents

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Proceeding under the Workmen's Compensation Act by Manuela Cuellar, claimant, against the American Employers' Insurance Company of Boston, Massachusetts, insurer. Judgment in favor of the claimant, and the insurer appeals.

Judgment affirmed, and cause remanded.

Death of employee of state highway department resulting from being struck on head with rock during blasting operation, though accident occurred after employee left duties and was on way home, held to “arise out of and in course of employment,” within Workmen's Compensation Act. Comp.St.1929, § 156-112( l).

H. B. Hamilton, of El Paso, Tex., and Gilbert & Hamilton, of Santa Fé, for appellant.

J. L. Lawson, of Alamogordo, for appellee.

BICKLEY, C. J.

This is an appeal by the insurer from a judgment in favor of a dependent widow, in a proceeding under the Workman's Compensation Act (Comp. St. 1929, § 156-101 et seq.). The deceased was in the employ of the state highway department, which, by Laws 1927, c. 100, was authorized to take out insurance securing for its employees the benefits of the act.

The highway department was constructing a road. The deceased was employed as a pick and shovel man with a grading crew. Foreman Maxwell was in charge of the crew, employing and discharging the men. Quarters were furnished for the employees, which the deceased ordinarily occupied. But, living near by, he was accustomed to spend Sundays with his family.

A mile and a half or more from where the grading crew was working, another crew, in charge of Foreman Cady, was constructing a bridge, a part of the same road project, and one continuous series of work near mouth of cañon from La Luz to Highrolls; both foremen employing explosives for blasting; blasting was employed in the immediate vicinity where Cuellar worked, under Foreman Maxwell. We attach no significance to the fact that there was more than one foreman on the job. The highway department was the employer, and deceased was an employee thereof.

On the day in question, the deceased obtained permission from his foreman to quit work an hour earlier than usual, it being Saturday, so that he could leave for his Sunday visit. He proceeded on foot along a railroad track, the nearest, and a reasonable, though not the only, route to his destination, in the area which was then being used by the state highway department in constructing a road, through La Luz Cañon containing both the railroad and the highway under construction, apparently in close proximity and parallel. Approaching the scene of operations of the bridge crew, he was killed by being struck by a rock thrown into the air by a blast set off by Foreman Cady.

The judgment is on the theory that the proximate cause of death was negligence of Cady, attributable to the highway department, the employer. Appellant challenges the conclusion of negligence, but we do not question its correctness.

It is contended by appellant that the fatal injury was not one “arising out of and in the course of” the employment of the deceased within the meaning of the act. Laws 1917, c. 83, as amended. This requires consideration of section 12 ( l) of that chapter. It appears unchanged in Laws 1929, c. 113, § 12 ( l) (1929 Comp. St. § 156-112 ( l). Its text is as follows: “The words ‘injuries sustained in extra-hazardous occupations or pursuits,’ as used in this act 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.”

Defending her judgment, appellee takes the position that this subsection, by clear inference, means that if the employer's negligence is the proximate cause of the injury, it shall be deemed to have arisen out of and in the course of the employment, though the workman had left his duties. She enjoys in argument such advantage as is to be had from the fact that the subsection, standing alone, not only is susceptible of such construction, but seems to mean that very thing.

Appellant points out that, if such be the meaning, the provision is far-reaching, greatly extends the operation of the act, and is a departure from the underlying principles and true theory of workmen's compensation. Illustrating the point, it suggests that it would afford compensation to a workman who had left his duties, was on his way home, and was injured by being negligently struck by the employer's automobile, driven by a chauffeur, conveying the employer's wife to keep a social engagement.

Appellee says the case assumed would not come within the subsection, because, to be compensable, “the injury would have to arise out of a negligent act of the employer in the line of his work in an extra-hazardous occupation.”

But appellee's proposed limitation may not go far enough to satisfy the demand for reasonable construction. It does not confine the operation of the provision within the reasonable and generally accepted purposes of workmen's compensation. According to the language, neither lapse of time nor circumstance stops operation of the provision, after the workman shall have left his duties.

Both parties agree that there is necessity for judicial construction. Appellee contends that the injury is compensable if due to negligence of the employer in the conduct of his business as a whole, the appellant insisting that compensation is allowable only in case the negligence is in connection with that part of the business in respect to which the workman has duties, and that “injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties” means “while still ‘in or about the premises' of his employment *** even tho he had ceased work for the day and started home.”

Both parties agree that few states have a similar statutory provision, and that none, so far as their research has gone, has construed it.

Our section 12 very closely follows section 6 of the original Wyoming act of 1915, c. 124; there being but a slight difference in subsection ( l). The italicized portion of our subsection is quite similar to a provision of the Kansas act, first appearing in Laws 1913, c. 216, § 4, amendatory of section 9 of the original act. L. 1911, c. 218. However, we have found no decision in either state interpreting it.

This subsection purports to refer to a phrase “as used in” the act, viz., “injuries sustained in extra-hazardous occupations or pursuit.” We do not find this exact expression to have been used. It appears in section 2 of the Wyoming Act cited supra, and its substance and effect is contained in section 2 of our act. (156-102, 1929 Comp. St.)

Without mention of the peculiar fact just pointed out, both counsel have assumed that section 12 ( l) has reference to the question, sometimes troublesome, of whether the particular injury was sustained in or arose out of or in the course of the employment.

Another peculiarity of section 12 ( l) is this: The idea of negligence as an essential to recovery is generally foreign to the theory of workmen's compensation. Merrill v. Peñasco Lumber Co., 27 N. M. 632, 204 P. 72. Economic and humanitarian considerations have brought about a system which generally places the right to compensation on other grounds. Merrill v. Peñasco Lumber Co., supra; Gonzales v. Chino Copper Co., 29 N. M. 228, 222 P. 903; Hughey v. Ware, 34 N. M. 29, 276 P. 27. Yet, discovering this provision, it seems that under certain circumstances, whatever they may be, negligence will still be the basis of recovery.

This injection of negligence, or reversion to it, is not by a direct statement. It is provided in substance that injuries to a workman “while on his way to assume the duties of his employment or after leaving such duties” shall not be deemed to have been “sustained in” the course of the employment, unless negligence of the employer was the proximate cause. From this it is to be inferred that if, after the workman has left his duties, the employer's negligence, as the proximate cause, is responsible for an injury to him, he shall have compensation. But it is a matter of construction, and its far-reaching and illogical consequences raise doubt that the intent was as broad as the language.

The necessity for judicial construction being conceded, we approach the task in the light of the provisions of Workmen's Compensation Acts in which the peculiar expression of our statute do not appear, and we keep in mind the fact that the Workmen's Compensation Act is remedial and should be liberally construed, but not...