Lance v. New Mexico Military Institute

• Decision Date: 21 May 1962
• Docket Number: No. 6912,6912
• Citation: 70 N.M. 158,371 P.2d 995,1962 NMSC 66
• Parties: Mrs. Jack LANCE, widow and sole surviving dependent of Sgt. Jack Lance, Deceased, Plaintiff-Appellant, v. NEW MEXICO MILITARY INSTITUTE, a State of New Mexico School for the teaching of military service, and Hartford Accident and Indemnity Co., a corporation, Defendants- Appellees.
• Court: New Mexico Supreme Court

Page 995

371 P.2d 995

70 N.M. 158

Mrs. Jack LANCE, widow and sole surviving dependent of Sgt Jack Lance, Deceased, Plaintiff-Appellant, v. NEW MEXICO MILITARY INSTITUTE, a State of New Mexico School for the teaching of military service, and Hartford Accident and Indemnity Co., a corporation Defendants- Appellees.

No. 6912.

Supreme Court of New Mexico.

May 21, 1962.

Rehearing Denied June 18, 1962.

Thomas B. Forbis, James M. H. Cullender, Roswell, for appellant.

Frazier & Cusack, Roswell, for appellees.

CARMODY, Justice.

The trial court entered judgment for the defendants under a claim for workmen's compensation in a death case, and the widow of the decedent appeals.

The basic claim of error has to do with the substantial evidence rule, although there are other allied questions relating to both the findings made and those refused by the trial court, estoppel, and the refusal to receive certain testimony.

The trial court made certain findings, which may be summarized as follows: Sergeant Lance was a member of the United States Army, stationed on the campus of the New Mexico Military Institute as an instructor in the Department of Military Science and Tactics. This department was staffed with members of the army and was not under the direction and control of the institute. That on December 12, 1959, Sergeant Lance was killed while flying an airplane over a tactical problem, which was under the control of the Department of Military Science and Tactics. That the airplane was rented by Sergeant Lance from the Aero Club of Walker Air Force Base. The court then proceeded to find that there was no contract to hire, express or implied, between Sergeant Lance and the institute; that the work being done by the sergeant at the time of his death was not at the instance or request of the institute; and that the institute had no right to control the actions or details of the work of the sergeant at the time of his death.

The circumstances upon which the above findings were based were, briefly, that Sergeant Lance held a private pilot's license and was desirous of obtaining as many flying hours as possible, in order to obtain a commercial license. He therefore discussed with some of the athletic officials at the institute the possibility of making flights to carry members of the coaching staff to various locations. An arrangement was made and Lance made several such flights, with the institute paying the rental cost of the plane, his hotel room and meals, and other necessary expenses. In addition, the sergeant discussed the matter with his commanding officer and, on the occasions when he was to make the flights, he was placed 'on pass.'

On a Saturday in the latter part of November, Sergeant Lance rented a plane and, taking one of the officers of the institute with him, flew over the cadets and dropped flour bombs during the performance of a tactical problem. The record is not absolutely clear as to how the payment for the plane was made, but apparently the charges were by the month, and the sergeant received a bill at the end of each month and paid the same, either with his own funds, or from some other undetermined source. It should be observed, however, that the institute agrees that it paid for the rental of the plane during the coaching flights, and apparently the cost of the plane on the Saturday in November was included in this amount, although there is no direct evidence showing this.

On the first Saturday in December, the sergeant again flew a plane over the tactical problem, and on the second Saturday (being the fatal day), while in the process of so flying, was killed. There is no showing that the rental bill for December was ever paid by anyone.

It is admitted that the flights were not ordered by the Department of Military Science and Tactics, nor is there any evidence that they were ordered by the representatives of the institute. It would seem that the appellant contends that, inasmuch as the one flight made in November was apparently paid for by the institute, that therefore the two flights made in December, following exactly the same pattern, place him within the scope of employment, at least by implication, or, in any event, that the institute would be estopped to deny such scope of employment.

Appellant also argues that the finding of the court that the institute had no right to control the actions of the sergeant is an improper finding, because it is admitted that the sergeant was not under the control of the Department of Military Science and Tactics and that therefore, under the circumstances, he must have been under the control of the institute.

In the last analysis, appellant asserts that the flights over the tactical problem and the coaching staff flights were in the same category, and that therefore Lance was an employee of the institute. The trouble with this contention is that the trial court found otherwise, and practically all of the direct evidence supports such finding.

There are circumstances which might be construed to the contrary, but this court does not weigh the evidence, nor overturn findings, merely because there is a conflict between the evidence accepted by the court and that upon which one of the parties relied. Davis v. Hartley, 1961, 69 N.M. 91, 364 P.2d 349; New Mexico Bus Sales v. Michael, 1961, 68 N.M. 223, 360 P.2d 639; Maryland Casualty Company v. Jolly, 1960, 67 N.M. 101, 352 P.2d 1013.

Apparently, appellant urges that as long as Lance was not on military duty and was doing something related to the students, that he therefore must be an employee of the institute. Query: It is quite possible under the evidence that the sergeant was doing something to further his personal interest or for pure enjoyment, and was not at the time an employee within the meaning of the Workmen's Compensation Act. See, Larson, Workmen's Compensation, vol. 1, Sec. 47.41(c).

It would seem that the trial court, by its findings, determined that, in effect, the sergeant was a gratuitous worker, although such finding is not specific, but is apparent by the court's denial of the requested findings as submitted by appellant. There is no evidence that the flights were actually ordered by anyone. That they were 'allowed' by the Department of...