Houston v. Lovington Storage Co.

• Decision Date: 22 March 1965
• Docket Number: No. 7604,7604
• Citation: 400 P.2d 476,1965 NMSC 30,75 N.M. 60
• Parties: Corrine HOUSTON, Individually, Claria Houston, A. Minor, and Vivian Ann Houston, A Minor, By and Through Their Next Friend, Corrine Houston, Plaintiffs-Appellees, v. LOVINGTON STORAGE COMPANY, Inc., Employer, and Maryland Casualty Company, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 476

400 P.2d 476

75 N.M. 60

Corrine HOUSTON, Individually, Claria Houston, A. Minor, and Vivian Ann Houston, A Minor, By and Through Their Next Friend, Corrine Houston, Plaintiffs-Appellees, v. LOVINGTON STORAGE COMPANY, Inc., Employer, and Maryland

Casualty Company, Insurer, Defendants-Appellants.

No. 7604.

Supreme Court of New Mexico.

March 22, 1965.

Sanders & Bruin, Roswell, for appellants.

Heidel, Swarthout & Samberson, Lovington, for appellees.

COMPTON, Justice.

This is a workmen's compensation case. The employer and the insurance carrier appeal from a judgment awarding death benefits to the widow and two minor children of the deceased employee, Bennie Houston.

Questions to be determined on appeal are (1) whether the finding of the court that the death of the employee arose out of and in the course of his employment, and (2) whether the finding that the claimants were dependents at the time of his death within the meaning of Sec. 59-10-12 of the Workmen's Compensation Act, N.M.S.A., 1953 Comp., are supported by substantial evidence. The section, in part, reads:

'(j) The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of this act.

'1. A child under eighteen (18) years of age or incapable of self-support and unmarried, actually dependant upon the deceased.

'2. The widow, only if living with the deceased at the time of his death or legally entitled to be supported by him and actually dependent, including a divorced wife entitled to alimony and actually dependant.'

In determining the sufficiency of the evidence to sustain the findings we will consider only the evidence and the inferences to be drawn therefrom which support the findings, and if supported by substantial evidence the findings will not be disturbed, nor will we weigh the evidence where conflict exists. Luna v. Flores, 64 N.M. 312, 328 P.2d 82; and Little v. J. Korber & Co., 71 N.M. 294, 378 P.2d 119.

Bennie Houston was employed in September, 1961, as a general laborer and maintenance man by the Lovington Storage Co., Inc., which operated a grain and fertilizer business. In the words of Mr. Vincenti, the owner of the appellant employer, 'Whatever it took to run the grain elevator, he pitched in and did.' As part of his duties he operated a payloader equipped with a hoisting and lifting device in conjunction with a large bucket used in the picking up and handling of grain. On occasions he had been called upon to operate the payloader for other purposes. On April 2, 1962, Mr. Vincenti discovered Bennie Houston's body on the payloader crushed beneath a large storage tank which was located on the premises but which had no connection with the business. There were no witnesses to the accident. What caused the tank to fall upon the deceased is unknown and any attempt to explain it leads to pure conjecture and speculation.

The appellants contend that claimants failed to carry the burden of establishing that the accidental injury sustained by Bennie Houston arose out of and in the course of his employment or was reasonably incidental thereto. In support of their position the appellants rely on Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885; Little v. J. Korber & Co., supra; Alspaugh v. Mountain States Mutual Casualty Co., 66 N.M. 126, 343 P.2d 697; and Teal v. Potash Company of America, 60 N.M. 409, 292 P.2d 99. We do not question the holdings in those cases but those cases are distinguishable on the facts. It is clear that Bennie Houston's death resulted from an accident, that the accident occurred on the employer's premises during working hours and while the deceased was on duty and engaged in the operation of equipment he was authorized to operate.

It is not necessary that the essential facts necessary to a recovery be proved by direct evidence; they may be established by reasonable inferences drawn from proven facts. Medina v. New Mexico Consolidated Min. Co., 51 N.M. 493, 188 P.2d 343; and Teal v. Potash Company of America, supra. Where there is substantial evidence that the death of an employee results from an accident and the accident occurs during his hours of work, at a place where his duties require him to be, or where he might properly have been in the performance of such duties, the trier of the facts may reasonably conclude therefrom, as a natural inference, that the accident arises out of and in the course of the employment, and that the injury was reasonably incident to the employment. Medina v. New Mexico Consolidated Min. Co., supra; 1 Larson, Workmen's Compensation Law, 1964, pp. 108, 112, 113.

The primary argument of the appellants is that there is no substantial evidence to support the court's ultimate finding that the claimants were actually dependent upon the deceased at the time of his death. They rely on Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225; and Employers Mutual Liability Ins. Co. of Wis. v. Jarde, 73 N.M. 371, 388 P.2d 382, wherein the test for dependency with respect to workmen's compensation claims for death benefits is held to be whether the deceased employee had actually contributed to the claimant's support, and whether they relied upon such earnings in whole or in part for their livelihood. Asserting that the evidence here shows the deceased did not actually contribute anything to the support of the claimants from the time he abandoned them to the date of his death and that they did not rely upon contributions from him for their support, the appellants claim this test had not been met. We do not agree. These cases do not deal with the question at hand. In these cases no consideration of a legal obligation to support was involved. See also Gonzales v. China Copper Co., 29 N.M. 228, 222 P.2d 903; Dimas v. Albuquerque & Cerrillos Coal Co., 35 N.M. 591, 3 P.2d 1068; and ...