Johnson v. J. S. & H. Const. Co.

• Decision Date: 05 December 1969
• Docket Number: No. 365,365
• Citation: 81 N.M. 42,1969 NMCA 122,462 P.2d 627
• Parties: Lee Roy JOHNSON, Plaintiff-Appellant, v. J.S. & H. CONSTRUCTION CO., Employer; and Home Indemnity Insurance Co., Insurer, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 627

462 P.2d 627

81 N.M. 42

Lee Roy JOHNSON, Plaintiff-Appellant, v. J.S. & H. CONSTRUCTION CO., Employer; and Home Indemnity Insurance Co., Insurer, Defendants-Appellees.

No. 365.

Court of Appeals of New Mexico.

Dec. 5, 1969.

[81 NM 42] Willard F. Kitts, Albuquerque, for plaintiff-appellant.

Wayne C. Wolf, Civerolo, Hansen & Wolf, Albuquerque, for defendants-appellees.

OPINION

OMAN, Judge.

This is an appeal by plaintiff from a summary judgment granted defendants. The suit is for medical expenses under the Workmen's Compensation Act.

If the record presents a genuine issue on the material fact of whether plaintiff's accidental injury arose out of and in the course of his employment with defendant, J.S. & H. Construction Co., then we must reverse.

Defendants contend no such genuine issue exists because the record shows at the time of the accident plaintiff was a loaned or special employee of Lembke Construction Company. Lembke was the prime contractor on the project on which J.S. & H., the general employer of plaintiff, was a subcontractor.

The motion for summary judgment was predicated on the pleadings, plaintiff's deposition and an affidavit by plaintiff in opposition to the motion. Apparently the basis for the summary judgment was plaintiff's statement that he had been borrowed by Lembke under '* * * some kind of an arrangement where they (Lembke) would use me (plaintiff) in the afternoons when we (J.S. & H.) were through with our work. * * *', and his statement that the work he was doing '* * * was part of the Lembke work * * *' and he believed it was Lembke's foreman who was giving him directions at the time.

This evidence would certainly be sufficient to support a fidning that the work being done by plaintiff was that of Lembke. If this were all of the evidence, it would compel a finding that the accidental injury did not arise out of and in the course of plaintiff's employment for J.S. & H. See Jones v. George F. Getty Oil Co., 92 F.2d 255 (10th Cir. 1937), cert. denied, Associated Indemnity Corp. v. George F. Getty Oil Co., 303 U.S. 644, 58 S.Ct. 644, 82 L.Ed. 1106 (1938); Shipman v. Macco Corporation, 74 N.M. 174, 392 P.2d 9 (1964).

However, the following also appears in the record: (1) Plaintiff was directed by the J.S. & H. foreman to do the work for Lembke; (2) At no time was he told by Lembke when to go to work or when to quit; (3) He was never paid by Lembke, but his time was kept and he was at all times paid by J.S. & H.; (4) The J.S. & H. foreman made out the accident report; and (5) Defendants paid plaintiff workmen's compensation benefits from the date of the accident, July 20, 1964, until about September 18, 1964, and paid his medical, hospital and drug bills in the sum of $1,331.82, during the period of July 20, 1964, to about June 10, 1965.

In Jones v. George F. Getty Oil Co., supra, and Shipman v. Macco Corporation, supra, it was said:

"The ultimate test is: Whose is the work being done? * * * In determinning whose work is being done, the question of the power to control the work is of great importance * * * but is not conclusive. * * * The identity of the person who, in fact, directs the details of the work and gives the immediate instructions to the workmen is of comparatively small importance, the power of control referred to being the power to control the undertaking as a whole. * * *"

In Gilbert v. E. B. Law and Son, Inc., 60 N.M. 101, 287 P.2d 992 (1955), it was held that the making of the accident report by the employer and the payment of compensation by the insurer constituted an admission against interest by the employer and the insurer sufficient to support an award of compensation. In Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966), it was held this admission was rebuttable and not conclusive.

In considering the merits of a motion for summary judgment, it is not the function of the trial court or the appellate court to weigh evidence. A summary...