McBee v. Hale

• Decision Date: 10 January 1952
• Docket Number: No. 5431,5431
• Citation: McBee v. Hale, 239 P.2d 737, 56 N.M. 53, 1952 NMSC 9 (N.M. 1952)
• Parties: McBEE v. HALE et al.
• Court: New Mexico Supreme Court

Page 737

239 P.2d 737

56 N.M. 53

McBEE v.HALE et al.

No. 5431.

Supreme Court of New Mexico.

Jan. 10, 1952.

Caswell F. Neal, Caswell S. Neal and Foster Windham, all of Carlsbad, Milford D. Estill, Artesia, for appellant.

Reese, McCormick & Lusk and Eugene C. Paine, all of Carlsbad, Archer & Dillard, Artesia, for appellees.

FEDERICI, District Judge.

The sole issue before this court is whether the injury sustained by plaintiff-appellant is compensable under the terms and meaning of the New Mexico Workmen's Compensation Act. 1941 Comp. Sec. 57-901 et seq.

Defendant-appellees are engaged in the business of operating a retail store for the sale of groceries, produce, and meats, all under one roof and apparently in one large room.Plaintiff-appellant was employed in the meat department of said establishment as a butcher, cutting and selling meat, and helped to do the buying for the store.In connection with the meat department there were used an electric slicing machine, an electric meat grinder, and an electric tenderizer; and in connection with the whole of the establishment there were used electric walk-in boxes, electric scales, electric cash registers, electric motors that pulled produce and meat boxes, and electric fans.

Plaintiff-appellant, while so employed, picked up one fore-quarter of beet that had fallen to the store floor, and in so doing sustained an injury to his right hip.Later while lifting the hind-quarter of a beef, trying to hang it on a hook at the top of the meat vault in the said store, the meat slipped off the hook and he went down with it and sustained another injury to his back.

Sec. 57-910,N.M. Statutes 1941 Annotated, provides as follows: 'The extra-hazardous occupations and pursuits to which this act[Secs. 57-901-931] are [is] applicable are as follows: Factories, mills and workshops where machinery is used foundries, blast furnaces, mines, oil wells, gas works, natural gas plants, water-works, reduction works, breweries, elevators, dredges, smelters, power works, laundries operated by power, quarries, engineering works, logging, road building and construction, lumbering and saw mill operations, street railways, buildings being constructed, repaired, moved, or demolished; telephone, telegraph, electric light or power plants or lines, steam heating or power plants; bridge building, railroad construction work, but shall not include railroad construction work, of any character when done by the owner or operator of any railroad; and all employment wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on; and each of which employments above named, including all employees of telephone and telegraph companies, is hereby determined to be extra-hazardous, in which, from the nature, conditions or means of prosecution of the work therein required risks to the life and limb of the workman engaged therein are inherent, necessary or substantially unavoidable.All duly elected or appointed peace officers of the state, counties or municipalities, and the warden and all guards employed at the state penitentiary shall be deemed to be following extra-hazardous occupations and to be within the provisions of this act[Secs. 57-901-57-931].This act[Secs. 57-901-57-931] shall not apply in any case where the injury occurred before this act[Secs. 57-901-57-931] takes effect, and all rights which have accrued by reason of any such injury prior to the taking effect of this act[Secs. 57-901-57-931] shall be saved the remedies now existing therefor.'(Emphasis ours.)

Subparagraph (b) of Sec. 57-912,N.M. Statutes 1941 Annotated, defines the word 'workshop' as used in the Act as follows: "Workshop' means any yard, plant, premises, room or place where power driven machinery is employed and manual labor is exercised incidental to the process of making, altering, repairing, printing, or ornamenting, finishing or adapting for sale or otherwise any article or part of article, over which premises, room or place the employer of the person working therein has the right of access or control.'(Emphasis ours.)

In the inception it will be noted that Sec. 57-910, supra, enumerating the extra-hazardous occupations covered by the Act does not list grocery stores, butcher shops, or meat markets as being covered by the mandatory provisions of the Act.Consequently the legal issue resolves itself as to whether or not the establishment here involved is a workshop where machinery is used within the meaning of the above-quoted sections of statutory law.Actually the issue is limited to the question of whether this establishment is a 'workshop' within the above-quoted statutory definition of that term.

Plaintiff-appellant cites the following cases in support of his contention: In re Sikora, 57 Wyo. 57, 112 P.2d 557;Eckhardt v. Jones' Market, 105 Or. 204, 209 P. 470;Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903;Points v. Wills, 44 N.M. 31, 97 P.2d 374;Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410;Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263;McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867, andWilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365.Defendants-Appellees cite the following cases...