Frederick v. Younger Van Lines

• Decision Date: 29 June 1964
• Docket Number: No. 7404,7404
• Citation: 393 P.2d 438,74 N.M. 320,1964 NMSC 156
• Parties: Arthur FREDERICK, Jr., Plaintiff-Appellant and Cross-Appellee, v. YOUNGER VAN LINES and St. Paul Fire & Marine Insurance Company, Defendants-Appellees and Cross-Appellants.
• Court: New Mexico Supreme Court

Page 438

393 P.2d 438

74 N.M. 320

Arthur FREDERICK, Jr., Plaintiff-Appellant and Cross-Appellee, v. YOUNGER VAN LINES and St. Paul Fire & Marine Insurance

Company, Defendants-Appellees and

Cross-Appellants.

No. 7404.

Supreme Court of New Mexico.

June 29, 1964.

William J. Heck, Hobbs, for appellant.

Girand, Cowan & Reese, Hobbs, for appellees.

MOISE, Justice.

By this appeal, plaintiff-appellant presents for review two questions. He first argues that there is an absence of substantial evidence to support the findings and conclusions of the trial court that, when injured, plaintiff had deviated from his course and by virtue thereof the accident resulting in his injuries did not arise out of and in the course of his employment with defendant-employer who together with his workmen's compensation insurance carrier are the appellees. Next he asserts there is no substantial evidence to support the trial court's finding that the plaintiff suffered no disability to his body as a whole resulting from said accident.

Defendant, in turn, complains that the court's finding that plaintiff is suffering 80% loss of vision in the right eye as a result of the accident is not supported because of an absence of expert medical testimony establishing the causal connection between the accident and loss of sight as a medical probability as required by Sec. 59-10-13.3(B), N.M.S.A.1953.

At the close of plaintiff's case the court sustained a motion by defendant for judgment, stating that plaintiff was not entitled to recover 'even assuming that his story is true and that he was instructed to take 285 into Denver, which I do not agree was proven,' and further:

'But, even assuming that you were attempting to follow the boss's instructions by going that route and went over the other way because of the detour sign, I see no reason why as you got back to Raton you elected to take a much longer route to come to Hobbs. I see no reason for your having done so. I think you deviated materially from your course and were not injured while you were in the course of your employment.'

The court thereafter made the following findings and conclusions which are here under attack:

'2. That the plaintiff's claimed injuries did not result from an accident arising out of or in the course of his employment by Younger Van Lines.

'3. The Court finds that the plaintiff suffered no disability to his back or body as a whole resulting from said accident.

'4. That plaintiff prior to the day of the accident was employed by defendant Younger Van Lines as a driver to drive a van to Denver, Colorado, unload his cargo and return to Hobbs, New Mexico; and that on his return trip he materially deviated from the direct course to Hobbs. That said deviation in no way furthered defendant Younger Van Lines' business and that said deviation resulted in plaintiff's traversing a more hazardous road to the place where the accident occurred. That the accident occurred solely as a result of the deviation which was of no benefit to the employer but was detrimental to defendant Younger Van Lines and resulted in loss of time and wages during such deviation as well as the damage to the employer's property.

'5. That the only disability from which plaintiff suffers as a result of such accident is a loss of vision in the right eye equivalent to 80% thereof.' Conclusion of Law No. 1.

'The Court concludes that the plaintiff's claimed injuries and the accident described in the Complaint did not arise out of or in the course of plaintiff's employment by the defendant Younger Van Lines and that the plaintiff cannot recover herein.'

We recognize that under Rule 41(b) (Sec. 21-1-1(41)(b), N.M.S.A.1953) a trial judge, when ruling on a motion to dismiss made at the close of plaintiff's case, is not required to view plaintiff's testimony together with all reasonable inferences therefrom in its most favorable aspect for plaintiff, but rather that the court weighs the testimony and applies its judgment thereto. Hickman v. Mylander, 68 N.M. 340, 362 P.2d 500. We applied the rule in Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824, and very recently in Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568, both being workmen's compensation cases.

In this review, in which we are called upon to consider if the findings are supported by substantial evidence, we are bound to view the evidence in its most favorable light to support the court's findings. Blancett v. Homestake-Sapin Partners, supra.

Looking at the findings quoted above, it seems quite apparent that the court was attempting to state that under the facts recited in finding 5, plaintiff suffered an 80% loss of vision in his right eye, but no disability to his back or to his body as a whole. Finding 2 to the effect that the injuries did not result from an accident arising out of or in the course of plaintiff's employment with defendant-employer, is more properly a conclusion of law. It is repeated in conclusion No. 1, quoted above.

At the same time, we are faced with the problem of determining if the court's action in totally disregarding plaintiff's testimony denies to the court's findings that support necessary under our rules.

Plaintiff testified that before leaving on the trip to Denver with a vanload of furniture, he discussed that route to be followed with Mr. Oldham, defendant's dispatcher and manager, and that they pencilled the same on a map. It was understood that plaintiff would follow Highway 18 from Hobbs to Tatum, then Highway 380 to Roswell, and then Highway 285 to Denver. Upon arriving at the place where Highway 285 and Highway 64 intersect near Espanola, there was a detour on 285 and plaintiff then followed Highway 64 to Taos, then to Raton, and from there north to Denver. On his return trip he was retracing his path as he stated was customary when a return load is not to be picked up. In a phone conversation before leaving Denver, plaintiff testified Mr. Oldham told him to return 'straight to Hobbs.' Defendants argue that this amounted to an instruction to take the most direct and shortest route. However, plaintiff argues that nothing more was meant than that plaintiff should return directly to Hobbs without any side trips to pick up another load, and the route chosen was no longer or slower than going on the most direct route where some poorer roads would be encountered. Plaintiff's testimony also discloses that some hour and a half was spent stopped by a stream, and that only some 122 miles had been traveled on the day of the accident (it does not appear what time of day it happened except that it was after lunch), and that most of this was in a westerly direction, whereas Hobbs was south. At the time of the accident, which occurred some eleven miles before reaching Taos and resulted in injuries to his head, face, right eye, neck and back, and a moderately severe concussion, he was proceeding in the truck to this destination. The record discloses nothing to the contrary.

In this state of the record is there support in the evidence for the court's finding that plaintiff had 'materially deviated from the direct course to Hobbs'; that the deviation did not further, but was detrimental to defendant's business and that the deviation resulted in plaintiff's traveling a more hazardous road and was the sole cause of the accident?

We do not perceive in Sec. 21-1-1(41)(b), N.M.S.A.1953 any more right on the part of the trier of the facts to disregard all evidence and find contrary thereto at the close of plaintiff's case than at the close of all the evidence. Certainly, at the close of all the evidence the court is required to have support therein for any findings made by it.

The rules applicable when weighing uncontradicted testimony were reviewed by this court at length in Medler v. Henry, 44 N.M. 275, 101 P.2d 398, from which we quote the following:

'From the New Mexico cases discussed, we believe the rule in this jurisdiction to be that the testimony of a witness, whether interested or disinterested, cannot arbitrarily be disregarded by the trier of the facts; but it cannot be said that the trier of facts has acted arbitrarily in disregarding such testimony, although not directly contradicted, whenever any of the following matters appear from the record:

'(a) That the witness is impeached by direct evidence of his lack of veracity or of his bad moral character, or by some other legal method of impeachment.

'(b) That the testimony is equivocal or contains inherent improbabilities.

'(c) That there are suspicious circumstances surrounding the transaction testified to.

'(d) That legitimate inferences may be drawn from the facts and circumstances of the case that contradict or cast reasonable doubt upon the truth or accuracy of the oral testimony.'

In the later case of Brown v. Cobb, 53 N.M. 169, 204 P.2d 264, we again reiterated that, generally speaking, uncontradicted evidence on a material issue could not be disregarded by a court, and again recognized an exception where suspicious circumstances were present or contradictory inferences arose so as to cast some reasonable doubt on the testimony. In Waters v. Blockson, 57 N.M. 368, 258 P.2d 1135, we recognized that the rule that the sworn testimony had to be accepted as true was subject to exceptions, but pointed out that before a finding which disregarded the uncontradicted evidence could be upheld, facts or circumstances which impair or reflect on the accuracy of the testimony must be present. Mracek v. Dunifon, 55 N.M. 342, 233 P.2d 792, is generally to the same effect, stating that uncontradicted testimony may not be arbitrarily rejected, but pointing out that 'contradiction may be circumstantial as well as direct.' We think it clear, however, that evidence which is unimpeached and uncontradicted, either by direct testimony, contradictory testimony, suspicious circumstances, or adverse inferences may not be unceremoniously cast aside and...