Gibson v. Helms
| Decision Date | 06 May 1963 |
| Docket Number | No. 7035,7035 |
| Citation | 1963 NMSC 89,72 N.M. 152,381 P.2d 429 |
| Parties | Norma GIBSON, Plaintiff-Appellant, v. Elenor HELMS, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Dewie B. Leach, Hobbs, for appellant.
L. George Schubert, Lowell Stout, Hobbs, for appellee.
The appellant, who was plaintiff below, sought damages for personal injuries suffered while working as a clerk at the Frey Hotel for the defendants, John B. Frey, Garman Helms and Elenor Helms. At the close of the plaintiff's case, the trial court sustained a motion by the defendant Elenor Helms for a directed verdict in her favor and rendered judgment accordingly. The defendant John B. Frey had been dismissed from the action prior to the hearing before the jury and that matter is not in question in this appeal. The other defendant Garman Helms, husband of Elenor Helms, could not be found for service of process, and, therefore, the only defendant at the time of the trial before the jury was Elenor Helms. The plaintiff appeals from the action of the court in directing a verdict against her and in favor of the defendant. The Helmses had obtained a legal separation after the alleged injuries, but before the case was heard by the court.
The plaintiff alleges in her complaint that on or about August 22, 1960, while the plaintiff was in the performance of her duties in said hotel, as a clerk, the defendant Garman Helms, without cause or provocation, unlawfully, wrongfully, unjustly, and willfully made an attack upon the plaintiff by striking her with a one-quart thermos bottle on or near the left elbow; that the defendants John B. Frey and Elenor Helms knew that the defendant Garman Helms was so maliciously or mischievously disposed, particularly while under the influence of intoxicants, that they might have foreseen that he was likely to inflict upon an employee or other persons injuries of the kind in question; that these defendants knew that immediately prior to and at the time of the assault and battery the defendant Garman Helms was under the influence of intoxicants.
The defendant Elenor Helms answered admitting that she was the sole owner and operator of the Frey Hotel and that the plaintiff, Norma Gibson, was employed by the Frey Hotel as a cashier and clerk, but denied all other allegations.
The question to be decided on this appeal is whether or not the court below was justified in directing a verdict in favor of the defendant Elenor Helms in view of the evidence adduced on the plaintiff's case.
The plaintiff relies on two points for a reversal of the action of the court below in directing a verdict in defendant's favor.
Point 1 of plaintiff's contention is that the question of negligence on the part of an employer who is obligated to furnish his employee a reasonably safe place to perform the duties of the particular task on which he was engaged, is a question of fact to be decided by a jury.
Plaintiff's point 2 is that the district court erred in denying the jury an opportunity to pass its judgment on the question of the defendant employer's negligence resulting from an assault committed by her husband, acting as her agent or vice principal, upon another employee, in the course of her employment.
It is to be noted concerning plaintiff's point 1 that there is no allegation in plaintiff's complaint concerning the failure of the defendant to furnish the plaintiff a reasonably safe place to work. The allegations are based entirely on the alleged maliciousness and mischievousness of the defendant's husband while under the influence of intoxicants, and that the defendant might have foreseen that he was likely to inflict upon an employee injuries of the kind in question and that the defendant knew that immediately prior to and at the time of the assault and battery the defendant's husband was under the influence of intoxicants.
We have read the pleadings and searched the transcript and find no evidence that the premises in which the plaintiff worked were in any way unsafe. The only evidence in the record concerns the conduct of the defendant's husband at the time of the assault and battery. This matter was not brought out in the court below and for that reason, under our Rule 20, such an issue cannot be raised in this court for the first time. Danz v. Kennon, 63 N.M. 274, 317 P.2d 321.
However, resolving the contentions in plaintiff's point 2 to the effect that the district court erred in denying the jury an opportunity to pass its judgment on the question of the defendant-employer's negligence resulting from an assault committed by her husband, acting as her agent or vice principal, upon another employee, in the course of her employment is a more difficult matter to resolve.
There is some evidence in the transcript which the jury heard to the effect that Elenor Helms had held her husband, Garman Helms, out to others in the presence of the plaintiff to be the co-manager of the hotel. There is no question, as far as the record is concerned, that she herself was the owner of the hotel.
On direct examination, the questions and answers asked of the plaintiff were as follows, concerning the relationship of Garman Helms to the defendant and the management of the hotel:
'Q. Was there any activity on the part of Mrs. Helms that indicated to you that Mr. Helms had any authority around the hotel?
'A. Yes. If anyone asked for the manager, she would say which one of them. She didn't state to anyone that she alone was the manager.
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'Q. Was there ever any statements [sic] made by Mr. Helms in the presence of the defendant, Mrs. Helms, concerning his managerial authority or his authority at the hotel?
'A. No, he never did. Not in front of Mrs. Helms.
'Q. Now, from whom did you take orders from at the hotel?
'A. Mrs. Helms or Mr. Helms, if he gave an order. I just understood that they were both managers.
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* * *
'Q. Now, what did he do after she left the room in connection with you, if any?
'A. He kept taking his phone off of the hook and calling out on the switchboard. And, of course, the minute any of the guests takes the phone off of the hook, the switchboard makes a buzzing sound, ringing, and I would answer him and he would say, 'What does a man have to do to get something to eat.' I offered to call the cafe or order something for him or call a cab so he would get out and get it himself. And, he would tell me to go to Hell. And, some of the time he would put the phone back on the hook and some of the time, he didn't.
'Q. Now, just before this episode, the assault now, what did he do then?
'A. Well, he called out again, and he didn't put his phone on the hook, and I sent the porter back to see if he could get it up, because as long as it wasn't up, I would either have to plug it up on the switchboard or sit there and watch it, in case someone else called in. And, when the porter went back, Mr. Helms just shoved him out of the door. So, I had to leave the plug in on the switchboard and watch it.
'Q. Then, what did Mr. Helms do?
'A. I looked up and he was standing at the end of the desk. And, he said 'By God, when I give an order around here, I want it carried out.' I understood he was drunk and I knew he had picked up something but I didn't know what. It happened so quick, I just automatically threw up my arm and that is what I dodged; it was a thermos bottle.
The foregoing testimony indicates that insofar as the plaintiff was concerned, she understood by the actions of Mrs. Helms...
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