Lang v. Cruz

• Decision Date: 24 August 1964
• Docket Number: No. 7402,7402
• Citation: 74 N.M. 473,1964 NMSC 205,394 P.2d 988
• Parties: William H. LANG and Francis X. Murphy, Plaintiffs-Appellants, v. Alfonso Martinez CRUZ and Clancy Gomez, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 988

394 P.2d 988

74 N.M. 473

William H. LANG and Francis X. Murphy, Plaintiffs-Appellants, v. Alfonso Martinez CRUZ and Clancy Gomez, Defendants-Appellees.

No. 7402.

Supreme Court of New Mexico.

Aug. 24, 1964.

J. Lee Cathey, Carlsbad, Bean & Snead, Roswell, for appellants.

Brown & Brainerd, Roswell, for appellees.

CHAVEZ, Justice.

Appellants, William H. Lang and Francis X. Murphy, plaintiffs in the court below, appeal from a summary judgment in favor of appellee Clancy Gomez.

Appellants' amended complaint, which is in two counts, alleged that on July 23, 1962, at about 8:55 p.m., appellants were riding in a pickup truck driven by Zackay T. Robinson in a northerly direction on U. S. Highway 285 at a point about 3.3 miles south of Dexter, New Mexico; that appellee Alfonso Martinez Cruz was driving a farm tractor owned by appellee Gomez and so negligently operated the tractor as to cause a head-on collision between the vehicle driven by Robinson and a vehicle driven by one Francisco Chaves Solis; that at the time of the accident, appellee Cruz was employed by appellee Gomez and was driving the tractor in the course and scope of his employment; that as a proximate result of the negligence of appellee Cruz, appellants received severe and permanent injuries. Each appellant also alleged that the manner of operation of the tractor by appellee Cruz, at the time and place and under the circumstances, was unlawful, reckless and grossly negligent.

In separate answers, appellees Cruz and Gomez admitted the residence of the parties, the time and place of the accident and that appellee Cruz was employed by appellee Gomez, but denied all other allegations contained in appellants' complaint. Appellee Gomez then filed a motion for summary judgment, stating as grounds: That appellants seek recovery against him as the employer of appellee Cruz; that on the day of the accident and at all times material, appellee Cruz was employed as a farm laborer for the purposes of irrigating, chopping and picking cotton; that appellee Cruz was expressly instructed by appellee Gomez not to operate farm machinery of any type, including tractors, at any time; that on the date of the accident and at all times material, appellee Cruz was acting outside the scope of his employment in operating any tractor belonging to appellee Gomex; that, as shown by the depositions on file and affidavits attached, appellee Cruz was operating appellee Gomez' tractor without the knowledge or consent of Gomez, either express or implied, and in direct violation of express instructions by Gomez; that the pleadings on file show the injuries and damages complained of occurred at a point some distance from the place of employment of Cruz, said point being well outside the area of employment.

Attached to the motion for summary judgment were affidavits by appellees Cruz and Gomez relating the following: Alfonso Martinez Cruz is a Mexican National who was employed by Clancy Gomez as an agricultural worker, whose duties consisted of irrigation of alfalfa, chopping and picking cotton, and stacking bales of hay; that in November or December, 1961, all Mexican Nationals in the employ of appellee Gomez were instructed by Gomez that they were prohibited from operating any farm machinery, including tractors; that these instructions were repeated by the Chaves County Farm and Livestock Bureau, Inc., who, in January 1962, asked all Mexican Nationals who worked for Gomez to sign a form, printed in both English and Spanish, stating that they understood that they were not to drive any farm machinery, tractors or other equipment of a related nature.

On July 23, 1962, the date of the accident, appellee Cruz and another Mexican National, Jose Cardona Gallegos, were taken to the alfalfa field at about 6:00 p. m. and instructed to irrigate until about 11:00 p. m., when appellee Gomez would return and they would assist Gomez in baling hay. While irrigating, Cruz found that one of his boots had developed a rip in the heel causing a leak. Gallegos told Cruz that there was another pair of boots at the 'bracero' headquarters, about a mile and a half distant. Appellee Cruz, in his affidavit, states:

'* * * A little before 8:30 o'clock p. m., I walked over to the tractor which was parked in the hay field and which was hooked up to the hay baler. I unhooked the tractor from the hay baler and I noticed that there were no hay hooks on the hay baler at that time. The tractor has a manual ignition switch and does not require a key to start. After unhooking the tractor, I started it and drove from the field to the house where I was living. Mr. Gomez was not in the field at the time and I din't ask anyone about taking the tractor and I am sure that no one knew that I had taken it. I had not used the tractor before at any time.

'I drove to the house where I was staying and changed boots. I looked for the hay hooks there but did not find any. Mr. Gomez usually had the hay hooks with him or there was a pair on the baler, but I thought that I would just check to see if there were some in the house that we might use later. I had never been asked to bring hay hooks to the field before and nothing was mentioned about them on this particular day. I later learned that Mr. Gomez had a pair of hay hooks in his pick-up.

'After changing my boots, I again started the tractor and was driving back toward the alfalfa field when the accident occurred between the automobile driven by Mr. Solis and the pick-up driven by Mr. Robinson.

'I knew, at the time I took the tractor in the field, that I was acting against the express orders of Clancy Gomez and that I was not supposed to drive the tractor at all.'

On January 8, 1963, appellants filed a response to the motion for summary judgment, in which they reiterated their position that appellee Cruz was acting within the scope of his employment, even though it may have been in disobedience of express instructions of appellee Gomez. On January 11, 1963, a hearing was held on this motion, in which appellants introduced the transcript of an inquest held over the bodies of Francisco Chaves Solis and Erminda Salazar; and the depositions of appellees Cruz and Gomez which had been taken in cause No. 26026 in the district court of Chaves County, entitled Enadine Romero, Administratrix et al v. Zackay T. Robinson, et al. The transcript of the inquest held July 24, 1962, reveals that appellee Cruz was called as a witness and testified as follows:

'Q. Did you have occasion to be on U. S. Highway 285 last night, July 23rd, 1962 about three miles South of Dexter?

'A. I did.

'Q. What were you doing there?

'A. I took the tractor and went after some hay hooks and was going to start bailing later on that night.'

In his deposition, appellee Cruz, after testifying as to his job experience and ability as a driver of motor vehicles, stated:

'Q. Well didn't you know then that you were violating the law when you took this tractor and went back to the camp to get the hay hooks and the boots?

'A. Yes Sir, I did.

'* * *

'Q. Well did you go back for hay hooks or for another boot?

'A. Both things.

'Q. You knew you didn't have the hay hooks before Mr. Gomez left didn't you?

'A. No. Sir.

'Q. You weren't carrying hay hooks around out there where you were irrigating, were you?

'A. There is times when the hooks are kept in the pick-up on the bailing machine, I went to the machine and the hooks weren't there.

'* * *

'Q. I said Mr. Gomez knew you were going to have to have hay hooks if you were going to stack hay?

'A. Yes, Sir.

'Q. And did he know about your boot being ripped?

'A. No. Sir.

'Q. You didn't tell him about that?

'A. No, the boot was all right when Mr. Gomez left.

'* * *

'Q. Did he tell you that there weren't any hay hooks there when he went back to Hagerman?

'A. No, Sir, he didn't.

'Q. And so, in order to help with the hay bailing which was to start at 11:00 o'clock that evening, you knew that you were going to have to get some hay hooks?

'A. Yes, Sir.

'Q. And you also knew that you were going to have to get another boot to replace the one which had ripped?

'A. Yes, Sir.

'Q. And that was the purpose of your trip back to the camp that night with the tractor was to get the hay hooks and another pair of boots?

'A. Yes, that was the whole idea.

'Q. And at the time of the accident you were going back to the place where you were going to bale the hay?

'A. Yes.

'Q. And you had with you the hay hooks and the boots?

'A. I had the boots, the hooks were not at the house.

'Q. You didn't find the hay hooks at the house?

'A. No, Sir.

'Q. But you had gone there to get them?

'A. Yes.

'Q. And you were going to use these boots in you work when you got to the place were you were working?

'A. Yes, Sir.'

On cross-examination, appellee Cruz further testified:

'Q. The boots that you were wearing, what were they used for?

'A. Irrigation.

'Q. When the boot got a rip in it, what did that do?

'A. Water gets inside the boots.

'Q. Does that make it uncomfortable?

'A. No.

'Q. Could you have kept on irrigating the way it was?

'A. Yes, I could have continued however it would have gotten my feet wet to the extent that it would have made it uncomfortable for me.

'Q. So that the changing of the boots was just to keep your feet dry and didn't prevent your work?

'A. That is right.

'Q. Did you you ever find out where the hay hooks were that night?

'A. Afterwards I found out the hooks were in the pick-up.'

Based upon these affidavits, depositions and transcript of the inquest, the trial court granted summary judgment to appellee Gomez and made the following finding of fact:

'2. That there is no genuine issue as to any material fact in this cause and the Defendant, Clancy Gomez, is entitled to a judgment as a matter of law.'

Appeal timely followed with appellants relying on one point for reversal, to-wit:

'I. That at time of the accident on July 23, 1962, the defendant Alfonso Martinez Cruz was acting within the...