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