Feldhut v. Latham, 5931

• Citation: 60 N.M. 87,1955 NMSC 80,287 P.2d 615
• Decision Date: 07 September 1955
• Docket Number: No. 5931,5931
• Parties: Lloyd FELDHUT, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling Company, a partnership, and American Insurance Co. of Boston, Mass., Defendants-Appellants. Dwayne UPTAIN, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling Company, a partnership, and American Insurance Co. of Boston, Mass., Defendants-Appellants. Arthur ROSE, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling Company, a partnerhip, and American Insurance Co. of Boston, Mass., Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 615

287 P.2d 615

60 N.M. 87

Lloyd FELDHUT, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling

Company, a partnership, and American Insurance Co.

of Boston, Mass., Defendants-Appellants.

Dwayne UPTAIN, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling

Company, a partnership, and American Insurance Co.

of Boston, Mass., Defendants-Appellants.

Arthur ROSE, Plaintiff-Appellee, v. W. E. LATHAM and Roger Harris, d/b/a Strawn Drilling

Company, a partnerhip, and American Insurance Co.

of Boston, Mass., Defendants-Appellants.

No. 5931.

Supreme Court of New Mexico.

Sept. 7, 1955.

Iden & Johnson, Albuquerque, for appellants.

Brown & Wood, Farmington, for appellees.

McGHEE, Justice.

The claimants, Lloyd Feldhut, Dwayne Uptain and Arthur Rose, were members of a drilling crew working for the defendant drilling company on a well east of Blanco, New Mexico, and were injured while pushing a car being used by Benton Closson, a tool pusher working for the defendant. Separate claims for compensation were filed and after issue was joined the cases were consolidated and are presented here as one appeal.

The drilling crew was composed of the above named claimants, who were roughnecks on the rig, one Archuleta, who lived in Blanco and was also a roughneck, and Don Waggoner, the driller. All except Archuleta lived in or near Durango, Colorado, and they drove back and forth to work each day. The members of the crew who lived in Colorado alternated in furnishing a car, and they would pick up Archuleta at Blanco.

On the day of the accident, Waggoner furnished the car and did the driving. When they were a few miles west of Blanco they came upon Closson with his car parked on the side of the road out of gasoline. Closson was en route from the well with drilling reports which he was to deliver to the drilling company at Bloomfield. A tool pusher in oil and gas fields, it may be here stated, occupied the position of general foreman for his employer, while the driller occupies the position of foreman over the other members of the crew.

Closson asked or directed those riding in the car (exclusive of Rose who was asleep and did not awaken until the accident occurred) to push his car to Bloomfield, but was told it was nearer to Blanco and they would prefer to push him to that point. To this suggestion or request Closson agreed.

All except Rose assisted in turning Closson's car around and headed it towards Blanco. Closson was at the wheel of his car, while Waggoner was at the wheel of his automobile. Feldhut and Uptain remained out of the car to see that the front bumper of the Waggoner car made proper contact with the rear bumper of the car to be pushed. After observing a good contact had been made they got in the car with Waggoner, who proceeded to push the other car down the road. Very shortly thereafter an accident occurred resulting in injuries to the above named claimants.

Feldhut was awarded 100 percent permanent disability; Uptain was given 100 percent disability for five weeks, and Rose 100 percent disability for four weeks. The sum of $2,000.00 was allowed as attorneys' fees.

The first point relied upon by defendants for reversal is:

'Claimants failed to sustain burden of proof and failed to introduce substantial evidence at the trial proving or tending to prove, or from which any reasonable inference could be drawn, that the claimants, Lloyd Feldhut, Dwayne Uptain, and Arthur Rose, were injured by accident and at such time of injury were performing a service or services arising out of and in the course of their employment and that their injuries were proximately caused by accident arising out of and in the course of their employment.'

This is a strange case from a factual standpoint. All persons riding in the two cars testified in the case but no one was asked how the accident occurred, except perhaps one who said he was watching a road grader and did not know; but all agree there was an accident while Waggoner was pushing the car ahead, and we are satisfied the evidence, although in part circumstantial, is sufficient to establish the fact the accident which caused the injuries occurred during the pushing operation.

This leaves for determination under the above point the question of whether the claimants were in the course of their employment at the time, or whether, as claimants further contend, they were in fact being paid for travel time, thus bringing them within the rule of Barrington v. Johnn Drilling Co., 1947, 51 N.M. 172, 181 P.2d 166.

The defendant drilling company had moved into San Juan County from west Texas where transportation costs had been paid at the rate of seven cents per mile up to 100 miles for the one furnishing the car; when the company came to San Juan County such allowances were not made but the pay of each member of the crew was increased ten cents per hour. The claimants urged this increase was in lieu of transportation allowances, while the employer claimed it was necessary to raise the hourly rate in order to get experienced men to perform the work.

We have carefully examined the evidence on this point, and the most that can be said for it is that there was only speculation and gossip among the crew members as to the reason for the raise. The evidence is, therefore, insufficient to bring claimants under the travel-pay rule.

It is clear, however, the tool pusher was engaged in the performance of his duty to the company when he was taking the drilling reports to Bloomfield. It was his custom to return immediately to the well after delivering the reports, to supervise the members of the crew in the drilling operations and also perform his other duties in connection with the work on the well. It is undisputed that he at least asked the claimants, except Rose, to push his car, and while he testified he would not have fired them...