Luvaul v. A. Ray Barker Motor Co.

• Decision Date: 26 August 1963
• Docket Number: No. 7214,7214
• Citation: 72 N.M. 447,384 P.2d 885,1963 NMSC 152
• Parties: Charles Edward LUVAUL, Plaintiff-Appellant, v. A. RAY BARKER MOTOR COMPANY, Employer, and Pacific Employers Insurance Company, Insurer, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 885

384 P.2d 885

72 N.M. 447

Charles Edward LUVAUL, Plaintiff-Appellant, v. A. RAY BARKER MOTOR COMPANY, Employer, and Pacific Employers Insurance Company, Insurer, Defendants-Appellees.

No. 7214.

Supreme Court of New Mexico.

Aug. 26, 1963.

Sheehan, Duhigg & Christensen, Albuquerque, for appellant.

Key, Cohen & May, Albuquerque, for appellees.

CHAVEZ, Justice.

Appellant, claimant below, filed suit under the Workmen's Compensation Act, alleging that on or about November 21, 1960, while in the course of his employment by employer, A. Ray Barker Motor Company, he suffered injuries by accident arising out of his employment. The employer answered, denying the claim. The cause was heard by the trial court, without a jury, and judgment was entered for employer. Claimant appeals.

Claimant, an automotive mechanic, 36 years of age, had been employed by employer for a little over two years at the time of his injury. On Monday morning, November 21, 1960, claimant commenced the installation of a metal Jeep top. He did not complete the work by noon so he went to lunch. Upon returning from lunch, he completed the job and had 'a sort of dizzy spell.' He got a drink of water and then commenced repairing the wiring on a car. He had to get underneath the dashboard, had his feet on the seat and his back shoulders and head on the floor of the car. He worked in this position for fifteen or twenty minutes, completed the repairs and then went to the tool box to put his tools away. Claimant testified:

'A. * * * I walked about two steps some away from the tool box and that is the next thing I knew, why, I was woke up and I was on the floor * * *.'

Claimant also testified that, while he was repairing the wiring, a mechanic named Lon Smiley was working in the opposite stall on another automobile with the engine running and exhaust fumes blowing out of the tail pipe. He further testified that exhaust fumes were blowing into the open door of the car he was working on for 'a good four or five minutes.' The evidence shows that the opposite stall is across the aisle from where claimant was working and there is a space between the stalls, a distance of about twenty feet, wide enough for a car to pass.

With reference to claimant's deposition taken on May 1, 1961, on cross-examination, claimant was asked:

'Q. In the car. And the question was: 'In other words, you just fainted? Answer: Well, I don't know what actually happened. That's a closed shop and we been running motors in there and everything and with my head down and feet up in the air and somthing caused--caused it, either carbon in the shop or me having my feet up higher than my head. I don't know exactly, but they don't have any ventilation system there and we were always complaining about those carbon fumes and there was a car in the stall--Well, my stall is here and the fellow behind me, he has got a stall, back to each other. When he's running a motor I get all the fumes and when I'm running a motor he gets all my fumes.' Is that true?

'A. That's correct.

'Q. Question: 'You weren't running a motor then? Answer: No, I wasn't. Question: You don't know whether he was running a motor? Answer: They go in and out. I don't pay a whole lot of attention.' In that deposition, you said you didn't pay a lot of attention. That was in 1961, you didn't say definitely.

'A. Because I know the washboy pulled the car in on the wash rack, and the car he was over there working on it, washing it, and when Smiley got back from lunch, I remember definitely that he did start it. I couldn't remember then, but I know now he did start it because he was adjusting the the valves in the carburetor.'

Claimant testified that they had circulating fans and big heaters, but had no ventilation or exhaust outlets; that there are two doors, one on each side of the building and cars are brought in at each door; and that he was working right beside a large overhead door--'* * * where I was working was right at the door and sort of in a corner.'

Mr. A. Ray Barker, employer, testified:

'A. That building is seventy feet east and west, a hundred and twenty feet north and south, and a seventy [sic] foot ceiling, and half the building is not occupied by it but still in the same building, which the ventilation has never been questioned. I would say it doesn't need any ventilation.

We've got four big fans that carry all the circulation outlets. You have got a seventy [sic] foot ceiling.

* * *

* * *

'A. There is always circulation, because the doors are open for men constantly coming in and out.'

Mr. Barker further testified that he had been there for fifteen years and never had any complaints about ventilation.

One of the medical witnesses testified that if the concentration of carbon monoxide were high enough to affect one person, it would probably have some effect upon everybody.

Claimant suffered a skull fracture and testified that he bled from his ear for two or three days. He was in the hospital approximately two weeks and stated that while there he kept getting terrible headaches and dizzy spells. Claimant's clinical record states in part:

'1. HISTORY: This 35 year old white male automechanic presented on 11-21-60, following a black-out spell at which time he sustained in injury to the right side of his head. Previously the patient had had dizzy spells and 'fainting feeling,' for many years. He was hospitalized here in January 1960 for acute brain syndrome possibly secondary to alcoholic intoxication. He has been nervous for years.

* * *

* * *

'4. COURSE IN THE HOSPITAL: * * * He improved during his hospital stay and the x-rays did not show the fracture that was clinically present in the base of his skull as indicated by blood in his middle ear and bloody spinal fluid. The patient was not drowsy and complained of only mild headache which was relieved by aspirin. * * *

'DIAGNOSIS: 1. Head injury with basilar skull fracture, treated, improved. 2. * * *

'STATUS OF SERVICE CONNECTED DIS: Neurasthenia--not eval. for rating by psychiatric department.'

The trial court made the following pertinent findings of fact:

'3. That the plaintiff did not sustain an accidental injury arising out of and in the course of his employment.

'4. That the accident complained of by the plaintiff was not reasonably incident to his employment.

'5. That the disability claimed by the plaintiff was not an actual and direct result of any accident incident to his employment.

'6. That the plaintiff failed to establish a causal connection as a medical probability by expert medical testimony, that the alleged disability of the plaintiff was a natural and direct result of an accident incident to his employment.

'7. That the plaintiff merely established that as a medical possibility, there might have been a causal connection between the alleged disability and an accident incident to his employment.

'8. That the plaintiff failed to prove any disability as defined in the Workmen's Compensation Act of the State of New Mexico.

'9. That any injury claimed by plaintiff was not proximately caused by an accident arising out of and in the course of his employment with A. Ray Barker Motor Company.

'10. That the plaintiff did not sustain a compensable injury arising out of and in the course of his employment with A. Ray Barker Motor Company.'

Under point I, claimant contends that in determining the facts all evidence favorable to him must be considered as true, and all favorable inferences must be indulged in. Claimant concedes the inapplicability of this point under our recent decisions in Hickman v. Mylander, 68 N.M. 340, 362 P.2d 500, and Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824.

Claimant's second point is that the Workmen's Compensation Act is to be liberally construed. In numerous cases this doctrine has been followed by this court. Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680; White v. Valley Land Company, 64 N.M. 9, 322 P.2d 707; Briggs v. Zia Company, 63 N.M. 148, 315 P.2d 217; Armijo v. Middle Rio Grande Conservancy District, 59 N.M. 231, 282 P.2d 712; Mann v. Board of County Commissioners, 58 N.M. 626, 274 P.2d 145; and cases cited therein. We have also said that the Workmen's Compensation Act does not make the employer an insurer against injury or death of the employee. Teal v. Potash Company of America, 60 N.M. 409, 292 P.2d 99. Liberal construction does not mean a total disregard for the statute, or repeal of it under the guise of construction. Ross v. Marberry & Company, 66 N.M. 404, 349 P.2d 123.

A claimant, in Workmen's Compensation cases, under Ch. 67, Laws 1959, has the burden of proving: (1) That he sustained an accidental injury, arising out of and in the course of his employment; (2) that the accident was reasonably incident to his employment; and (3) that the disability is a natural and direct result of the accident. Also, in cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish a causal connection, as a medical probability, by expert medical testimony. No award of compensation shall be based on speculation or on expert testimony that, as a medical possibility, the causal connection exists. Section 59-10-13.3, N.M.S.A., 1953 Comp.

Claimant's last two points assert that reversible error was committed by the trial court when it adopted the findings of fact quoted above. Each point is prefaced with the statement that the attacked findings are not supported by the evidence if all the testimony in favor of plaintiff is considered as true, as well as all inferences favorable to him which can be drawn therefrom. In his reply brief, claimant concedes that these prefacing statements do not state the law applicable in New Mexico. This court, in Montano v. Saavedra, supra, enunciated the proper method of treatment of the evidence before it when a trial court is called upon to dismiss an action under the authority of Rule 41(b), Rules...